Carvalho v. Verma, 2024 ONSC 1183

Recently, estate litigation has been embroiled in scenarios involving pets and what results of such pets respecting their care and ownership after the owner passes away. Legally, pets are classified as property.^[1] Some of the statistics shared in the decision include:

“Eight in ten of the pet owners … (83%) consider their pet to be a family member; only 15 percent said they love their pet as a pet rather than as a family member.”

This research echoes one important point; the high level of care and importance to which Canadians place on their pets. In other words, estate planning for pets should be a consideration for all pet owners. Legal strategies include a pet trust, which allows for money to be held in trust to  allow for the payment of food and care after the owner’s death.

The following case of Carvalho v. Verma^[2], 2024 ONSC 1183 (“Carvalho”) exemplifies what may occur when pets are not considered in a Will or Codicil. Carvalho outlines the legal test that a litigant will have to pass in order to claim ownership of such pet. In Carvalho, the estate was able to successfully claim ownership of the dog.

Facts

In Carvalho, Mr. Carvalho (the “Deceased”) and his ex partner, Ms. Verma (the “Respondent”) had been in a relationship years before the Deceased’s death.^[3] While still together, the Deceased and the Respondent bought a dog in February of 2022, Rocco Junior (“Rocco”), during a vacation together in Florida. At the time of the Deceased’s death in November of 2022, Ms. Verma and the Deceased were no longer in a relationship or romantically involved. Shortly after the Deceased’s death, Ms. Verma took Rocco into her care.

The Deceased divided his estate amongst his two sisters, and his former romantic partner Ms. Vasilevich. The Deceased then updated his Will by way of Codicil, slightly changing the distribution amongst the three parties. Neither the Will, nor,  the Codicil mentioned Rocco.

Ms. Carvalho (the “Applicant”), one of the Deceased’s two sisters, was appointed as the Estate Trustee of the Deceased’s estate. The Applicant brought an application to the court, requesting a declaration that Rocco was owned by the Deceased, and should therefore be “transferred to Mr. Carvalho’s estate upon his passing and must be returned to the estate trustee”.^[4]

The Position of the Parties

As previously mentioned, the Applicant stated that Rocco belonged to the Deceased at the time of his death, and therefore formed a part of the estate, and must be returned. On the other hand, the Respondent is of the position that she owns Rocco or, in the alternative, Rocco was a gift from the Deceased. Lastly, in the “further alternative” the Respondent argued the doctrine of promissory estoppel.

In relation to pets and litigation the Court stated^[5]:

[22] Having summarized the positions of the parties, it is worth noting what this case is not about. This case is not about the extent of the love and devotion to Mr. Carvalho and/or Rocco felt by Ms. Carvalho and/or Ms. Verma.  This case is also not about the disdain that the parties felt for each other.  Litigants are entitled to a fair hearing and impartial adjudication from this court.  However, the court does not have to agree with or endorse the motivations of the parties^[6].

Additionally, the court asserted it does not take into account or decide “who loved whom more.”^[7]

The Issues

The court identified three issues in this case: who had ownership of Rocco Junior and did the Deceased gift Rocco to the Respondent? Respecting  the first issue, the court followed the Coates v. Dickson^[8] decision and considered the following factors:

1. Whether the animal was owned or possessed by one of the people before the relationship began;
2. Any express or implied agreement as to ownership, made either at the time the animal was acquired or after;
3. The nature of the relationship between people contesting ownership at the time the animal was first acquired;
4. Who purchased and/or raised the animal;
5. Who exercised care and control of the animal;
6.    Who bore the burden of the care and comfort of the animal;
7. Who paid for the expenses related to the animal’s upkeep;
8. Whether at any point the animal was gifted by the original owner to the other person;
9.     What happened to the animal after the relationship between the litigants changed; and,
10.    Any other indicia of ownership or evidence of agreement relevant to who has or should have the ownership of the animal.^[9]

The court further discussed the following in it’s analysis: The Deceased purchased Rocco with his own cash and paid for a majority of the services pertaining to the dog. The only substantial bill that the Respondent contributed towards Rocco’s expenses was an emergency vet bill of $2,200.^[10] Despite the Respondent’s contribution, it was clear from the Applicant’s evidence that Rocco lived with the Deceased. Text messages between the Respondent and the Applicant revealed the Respondent asking permission to visit Rocco at the Deceased’s home. As for factor (i), the Respondent asserted that the Deceased intended to gift the dog to her after the Deceased’s death, however, the Respondent was unable to provide evidence of such assertion. On this note, the court stated:

[43]      Given the specific facts of this case (Mr. Carvalho passing away as opposed to a couple separating) this factor is perhaps less important than in family law cases in which two people separate.  However, it is notable that there is no evidence of any intention on the part of Mr. Carvalho to bequeath Rocco Jr. to Ms. Verma at any time.  At the time of Mr. Carvalho’s death, there is no evidence that the couple were common law spouses.^[11]

As for the second issue, the court listed three essential elements of a legally valid gift that must be established on a balance of probabilities:

1. An intention to make a gift on the part of the donor without  consideration or expectation of remuneration;
2. An acceptance of the gift by the donee; and
3. A sufficient act of delivery or transfer of the property to complete the transaction.^[12]

Despite the contradictory evidence, there was proof that “Mr. Carvalho referred to Rocco as a gift for Ms. Verma (first factor) and that Ms. Verma accepted in the first instance (second factor)”^[13]. Regardless, the court ruled that the test failed at the third factor, because the Deceased never transferred Rocco to the Respondent, and maintained “possession and control” of the dog until his death.

Lastly, as for promissory estoppel, the Respondent asserted that the Deceased’s estate should not be able to use the defense of promissory estoppel because it would be “unconscionable to rip this dog from her hands and provide it to the estate trustee as if he were nothing but a piece of furniture”.^[14] The court failed to address this assertion because the Respondent failed, in the first place, to meet the elements of promissory estoppel defense. One of the three elements of such test included demonstrating that the “promise or assurance be intended to affect that relationship and to be acted on”.^[15] The Respondent failed to demonstrate there was a promise or assurance because there was no evidence that the Deceased gifted or promised to give Rocco to the Respondent.

Summary

The court declared that the Deceased had ownership of Rocco at the time of his death, and that the Respondent had to return Rocco to the Applicant, who was the Estate Trustee of the Deceased. This decision sheds light on the various factors and legal tests a court will consider during litigation where a pet owner fails to adequately plan for the ownership of a pet upon death.

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[1] The decision of Brown v Larochelle[1], 2017 BCPC 115 (“Brown”) from British Columbia, legally defines pets as property. Brown quotes the American decision of Coulthard v. Lawrence, a custody matter where pet ownership was discussed at length.

[2] Carvalho v. Verma, 2024 ONSC 1183 (“Carvalho”)

[3] Ibid at para 2.

[4] Ibid at para 5.

[5] Ibid at at para 21.

[6] Ibid at at para 22.

[7] Ibid at at para 23.

[8] Duboff; Coates v. Dickson, 2021 ONSC 992

[9] Ibid at para 26.

[10] Ibid para at 43.

[11] Ibid para at 43.

[12] Ibid para at 49.

[13] Ibid para at 14.

[14] Ibid para at 56.

[15] Ibid para at 57.