Watson v Hayward, 2002 BCPC 259 (CanLII)

Adam Watson sought an order requiring the Defendant, Bonnie Hayward, to return to him the Miniature Dachshund “Sophie.” Ms. Hayward contested the application and asks that the status quo be maintained with Sophie remaining under her custody or control.

Hayward was a breeder of Miniature Dachshunds, and Sophie was one of her pups before her sale to Watson and Keith MacDonnell.

The applicant, Adam Watson, with this then partner, Keith MacDonnell, purchased a Dachshund puppy, “Sophie,” from Bonnie Hayward. Hayward alleges that it was a condition of sale that the purchaser takes proper care of the dog, and provides the dog with a good home. She alleges that she made this condition clear to Adam Watson and Keith MacDonnell, and indicated that she would always take back one of her dogs in the event that the condition could not be met.  Watson denies any such condition being a term of the contract of purchase and sale.  Keith MacDonnell moved to Toronto sometime after the purchase, and Adam Watson retained sole custody of Sophie.

Sophie was left with Hayward for one week while Watson visited family in Arizona. Hayward said that Sophie was grossly obese at the time — nearly three times the normal weight for a dog of this breed. Her toenails were so long that they were growing under her feet and interfered with her walking. Her head was so fat that she could not turn her head from side to side, her breathing was laboured, and she could not stand up for any length of time. She also had a serious ear infection. When Watson returned, Hayward suggested that she retain Sophie until her weight was under control, and offered him access to Sophie during this process.

Watson’s position was that he is Sophie’s legal owner, and is prima facie entitled to possession of Sophie whilst the legal issues are litigated. He says he only gave Hayward possession of Sophie temporarily, and she has no legal basis to retain the dog or to send her to a foster family. As the owner, he has a fundamental right to determine what is in the best interests of Sophie, and what is a fitting home for her.

Hayward’s position is that she retains a right under the contract of purchase and sale to terminate the agreement if evidence indicates that the dog is being neglected or not receiving adequate care from the purchaser.

The Court was satisfied that Watson was able to establish a prima facie case. However, found that Watson did not satisfy the Court that he would suffer irreparable harm not compensated for by money damages if Sophie was not returned to him on this interlocutory application.

In the matter of best interests of Sophie, the Court noted there was evidence of neglect, and there was evidence that under the care of Hayward, Sophie’s health improved.

In conclusion, the Court was not satisfied by Watson that the balance of convenience lay his favour. Finding that it would be in Sophie’s best interests to remain with with foster home on an interim custody basis, pending the ultimate disposition of Watson’s claim.

Accordingly, the application by Adam Watson for possession of Sophie was dismissed.

Source: Case Law

Jurisdiction: British Columbia

Topics: breedercontractcustodydistressdogneglectowner

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