Have you considered what will happen when you pass away if you own a furry companion?
Many people do not turn their minds to the fact that pets are legally considered property, and in a last will and testament that described who is to inherit someone’s “property,” that could include a pet.
Leonard Carvalho took the responsible step of preparing a last will and testament, and he bequeathed his estate to his two sisters and a former spouse. He could not have anticipated the years long—and still ongoing—legal battle and costs that would arise from a dispute about his ownership of an American bull terrier.
At the time of his death, Leonard was in a relationship with Aliesha Verma, who was not named in his will. In February 2022, Leonard purchased Rocco Jr., a dog, then a puppy. Leonard died in November 2022.
Aliesha went to Leonard’s house the day after Leonard died, and took the dog, using what the Court of Appeal calls “self-help measures to gain access” to the home.
Aliesha claimed, among other things, that Leonard gave the dog to her as a gift and that she was a common-law spouse with a right to the dog. Leonard’s executor filed an Application alleging theft and seeking the dog’s return to her on behalf of the Estate.
The hearing on the status of the dog was concluded in February 2024, about 15 months after Leonard died. At the hearing, the Judge declared Rocco Jr. to be the property of Leonard’s estate. Aliesha was given about 2 weeks to return the dog.
Aliesha appealed the decision. Her grounds of appeal were that the Court erred in its conclusion because the Judge’s decision made references to the couple acquiring the dog, that a contractual analysis should have been applied in the decision, that the Court failed to consider that Aliesha was a joint owner of the dog, and that the Court overlooked evidence that Leonard made a gift of the dog to Aliesha.
Aliesha also filed for a stay of the order for her to return the dog, under Rule 63.02 of Ontario’s Rules of Civil Procedure which, if granted, would permit Aliesha to retain Rocco Jr. pending the outcome of her appeal.
The Court of Appeal considered the usual criteria for granting a stay, deliberating whether the appeal raises a serious question to be tried, whether Aliesha would suffer irreparable harm if the stay were not granted, and whether, as between Aliesha and the Estate, on the balance of convenience, which of the two parties would suffer the greater harm from granting or refusing the stay.
The Court of Appeal ruled that there was no serious issue to be tried: that the Judge had considered all relevant information, relied on evidence before it about Aliesha’s access to the dog and who paid for the dog, and found a lack of evidence about whether there was any express or implied agreement between Leonard and Aliesha about Rocco Jr.’s ownership. It stated that in her appeal, Aliesha took some “isolated sentences” out of the Judge’s decision and elevated them to appealable findings, rather than reading the decision in context, and in its entirety.
On the issue of “irreparable harm,” Aliesha asserted that Rocco Jr. was her emotional support animal. While the Court acknowledged that Aliesha found Rocco Jr. to be a source of comfort and that she experienced emotional distress, those factors did not elevate Rocco Jr.’s status to that of a “support animal.” The Court stated that Aliesha’s stress was “significantly related to the underlying litigation,” and that “she has had time to put in place other measures to address her anxiety” other than retaining Rocco Jr..
The Court of Appeal finally determined that the balance of convenience favoured the Estate and the Estate’s heirs, and their “distress for the dog’s well-being and whether he would ever be returned.” A factor that appears to have weighed into the Court of Appeal’s determination on this point is that Aliesha had launched a social media campaign about the Rocco Jr.’s fate, which included “misleading posts” and received favourable responses “encouraging her to run away with the dog and to use violence against Mr. Carvalho’s family.”
The stay was denied, but the Estate was also ordered to “preserve” the dog pending the appeal. The Estate received costs from Aliesha of $20,000. Other sources indicate that the costs of the civil litigation were in excess of $200,000. Aliesha did some crowd funding to assist her payment of legal fees.
A few things that are particularly interesting about the decision: one is that the denial of Aliesha’s request for a stay seems to have been at least partially influenced by the actions of non-parties commenting on Aliesha’s social media.
The decision calls attention to how often we can forget that pets are legally property, and when types of “property” are associated with deep emotion or could cause conflict among our survivors, we should be extra careful about stating what happens to them when we die.
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