Last summer, we wrote about an impending application to determine the ownership of a dog following its owner’s death. The decision, Carvalho v. Verma, has recently been released. This decision reinforces the importance of considering your companion animals when making your estate plans.
In October 2015, Mr. Leonard Carvalho made a will in which he divided his estate between his two sisters, Arlete and Helga, and his former romantic partner, Zoya. In October 2018, Mr. Carvalho made a codicil to amend his will and changed the distribution among the three beneficiaries. Mr. Carvalho passed away in November of 2022. Administering his estate should have been easy because of his estate planning. However, there was one issue, Mr. Carvalho’s dog Rocco Junior.
In the years before his death Mr. Carvalho was involved in a relationship with Aliesha Verma. The Court described the relationship as tempestuous as the couple frequently fought. In the months before Mr. Carvalho’s death, the relationship had cooled or possibly ended completely. However, in February of 2022 Mr. Carvalho and Ms. Verma travelled to Miami and acquired an American Bull Terrier named Rocco Junior. Both Mr. Carvalho and Ms. Verma cared for, and were comforted by, Rocco Junior. Both Mr. Carvalho’s will and codicil were silent about pets. The day following Mr. Carvalho’s death Ms. Verma took Rocco Jr. to live with her.
The law in Ontario treats dogs as personal property, even when purchased during a relationship. Personal property becomes part of a person’s estate after they pass and is distributed according to the directions in the deceased’s will.
Mr. Carvalho’s estate argued that Rocco Jr. belonged to Mr. Carvalho at the time of his death, and therefore formed a part of the estate, and must be returned. Ms. Verma argued that she owned Rocco Junior, or alternatively, that Mr. Carvalho gifted her the dog while he was still alive.
The Court identified two major issues: who had ownership of Rocco Junior and had Mr. Carvalho had gifted Rocco Junior to Ms. Verma.
On the ownership issue, the Court stated that traditionally ownership is determined by who paid for the animal. However, more recent decisions take a broader approach that looks at the relationship between the parties and the dog and considers a non-exhaustive list of factors. These factors include:
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.
The Court examined these factors and highlighted the fact that Mr. Carvalho maintained care and control of Rocco Jr. until the time of his death, as the dog lived with Mr. Carvalho. Ms. Verma’s access to the dog was dependent entirely on Mr. Carvalho’s agreement and permission. This was demonstrated by the communications between the parties where Ms. Verma sought permission to visit the dog. Furthermore, Mr. Carvalho purchased the dog with $800 cash, and as the dog lived with him, he paid for most of his dog’s expenses. Ultimately, the Court stated that regardless of whether the traditional or contemporary analysis is used, the evidence demonstrates that Mr. Carvalho owned Rocco Junior, not Ms. Verma.
On the issue of whether Mr. Carvalho gifted the dog to Ms. Verma, the Court held that there was no evidence of a gift being made. One of the elements of whether there was a legally valid gift is whether there was a sufficient act of delivery or transfer of the property to complete the transaction. The Court stated that even if Mr. Carvalho intended to gift the dog to Ms. Verma, he did not complete that gift as he maintained possession and control of the dog until his death.
Ultimately, the Court declared that the dog, Rocco Junior, was owned by Mr. Carvalho at the time of his death and formed part of his estate. Ms. Verma was ordered to return the dog to the estate trustee. Mrs. Verma commenced an appeal of the decision. However, according to an update on Ms. Verma’s GoFundMe page, she has decided not to pursue the appeal.
This decision confirms that unless companion animals are specifically mentioned in your estate plan, they will be treated as personal property. The best way to ensure that your wishes for your estate are protected and respected following your death is to meet with a lawyer and draft a valid will. Including your companion animals in your estate plan can help ensure they are well taken care of following your death.
At Daniel & Partners LLP, our dedicated and experienced estate team will work diligently to ensure that your estate planning needs are met. We offer a full range of services, from simple wills and Powers of Attorney to complex estate planning, trusts, and guardianship matters. Contact our office to arrange an initial consultation so our team can start working on your estate planning needs.
Blog post written by articling student Gillian Belford
