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Judge tosses dog custody case

September 8th, 2005, 06:38 PM
Judge tosses dog custody case
Sought joint custody of pet
Judges call claim `a waste of time'


Family courts in Ontario will apparently not be going to the dogs.

The Ontario Court of Appeal has dismissed Christopher Warnica's claim for shared joint custody of Tuxedo, an aging black and white Lab-border collie mix.

The court said it agreed with a family court judge's conclusion that Warnica's canine custody claim estimated to have cost in the thousands is a waste of court time.

"Given the unusual nature of this claim and the material before him, the case conference judge was entitled to conclude that the claim would likely fail ... and that in view of the pressing workload of the family court, the case did not warrant a full trial," justices John Laskin, Robert Sharpe and Russell Juriansz said in a decision released Friday.

It's believed to be the first time an Ontario court has applied a new rule, which allows judges hearing a family law case to determine if it is "a waste of time, a nuisance or an abuse of the court's process." Before the rule came into effect in January 2004, any case that raised a triable legal issue had to proceed.

As part of his claim for access, Warnica said his parents had grown accustomed to Tuxedo's companionship when the dog came for visits to their home, said Sandra Meyrick, a lawyer who represented Warnica's ex-girlfriend, Allison Gering, on the appeal.

"What I wanted the Court of Appeal to do is look at the caseload of the jurisdiction and (place this case) on a continuum, from child-protection cases being the most important in the court system to the division of chattels being the least important," Meyrick said.

"What we have here is a guy who wants to have access to his ex-girlfriend's dog for his parents," she said.

But Warnica maintained that the battle involved a bigger issue than access to the dog, who was rescued from a pound nine years ago. It was about the rights of estranged pet owners, who often see their animals as children, to take their bones of contention to court, he said.

"It's not a happy result," said Neil Holmes, Warnica's lawyer. "Now we have to worry that courts will say these cases are a waste of time, even though people say, `These things are very important to me.'"

The case began in June 2004, when Warnica, then described as an Oshawa truck driver, filed his claim in Superior Court.

Tuxedo lived with Gering, a teacher, who said she purchased the dog as a companion because she lived alone. Warnica, however, claimed she bought the dog for him as a gift. In his original court documents, he said he and Gering had dated for 11 years.

Later, when he learned that the family court would hear the case only if the couple had lived together, Warnica amended his claim to say that he and Gering had cohabited.

Warnica asked the court to declare that Gering has ownership of the dog on a constructive trust basis for both of them, and to allow him temporary possession of Tuxedo for alternating one-week periods.

A family court judge accepted jurisdiction of the case in September 2004. However, when it landed on Justice Roger Timms' desk, he had doubts about whether it belonged in court.

Each side deserved a fair and just procedure, but the case shouldn't "eat up" more of their money than necessary or "occupy more court resources than it merits," Timms said.

Warnica "has already spent what must amount to several thousand dollars. The respondent is concerned about her costs and asking for security."

Holmes said Small Claims Court may be the place for pet custody cases. But he said family courts are better equipped to deal with the disputes, which arise from "the breakdown of family relationships."