Darwin the Ikea monkey will remain at the Story Book Farm primate sanctuary until a trial over his ownership, a Superior Court Justice ruled Friday.
Yasmin Nakhuda, the former owner of the Japanese macaque, sat expressionless as Justice Michael Brown read the decision in an Oshawa courtroom Friday morning. Her husband, Samar Katoch, took his head in his hands and sighed.
“It must be remembered that Darwin is not a human being,” said Brown. “The custody laws regarding children do not apply.”
He must be viewed as a piece of property, in which case the test for an interim return of property before a trial is extremely high.
Brown said in this motion, Nakhuda had to meet the standard of being likely to be successful at trial.
“I am not satisfied she has met the high standard necessary” to prove she will be successful in winning Darwin back when the trial comes, he said.
The judge cited credibility issues but did not elaborate.
On Thursday, defence lawyer Kevin Toyne cast doubt on Nakhuda for changing her story about how she acquired Darwin and about what happened at animal services Dec. 9.
However, he said that he would advise the trial judge to set an earlier trial date – as soon as May – because Nakhuda fears the bond between her and Darwin is breaking.
Monkey specialist Peggy Rice has said it will be “devastating” to the bond if they are kept apart longer than four months.
“I do not believe that the bond with Darwin will be broken or damaged irreparably as long as an earlier trial date is set,” said Brown.
On Thursday, Nakhuda’s lawyers argued that Toronto Animal Services tricked her into surrendering the monkey after he was caught roaming an Ikea parking lot Dec. 9.
She said she was led to believe that animal services had the legal authority to seize her monkey. Believing she had no hope of getting him back, she signed a surrender form, thinking it was a document transferring him to a sanctuary.
She launched her lawsuit against Story Book Farm Primate Sanctuary less than a week later.
Outside the court, sanctuary president Sherri Delaney said she was “relieved” by the decision.
“At least now we know we’ll have him until May, and we’ll see what happens in trial,” she said.
Defence lawyer Kevin Toyne argued that as a real estate lawyer, Nakhuda must know the legal meaning of the word “surrender.”
“There was no gun to Ms. Nakhuda’s head that day,” he said. “It was her choice. She didn’t have to sign the form, but she did.”
He also alleged that she abused and neglected the monkey, reading emails she sent to a U.S. animal trainer for help shortly after gaining possession of Darwin.
Nakhuda had written that Darwin attacked her when she tried to change his diaper, so in one instance she left him in his dirty diaper for 36 hours. In others, she wrote about brandishing a wooden spoon and learning how to smack him on the nose to discipline him.
“You are right to say I am sitting on a ticking time bomb,” she wrote. “All I can do now is take Darwin to an animal shelter and I don’t even know one here.”
Her defence lawyers called the allegations “ridiculous” and “upsetting.” They read several witness statements from co-workers who said Nakhuda took Darwin to work every day and the two were inseparable.
Meanwhile, the sanctuary has said he is thriving in his new environment, where he transitioning towards less interaction with humans and more with other monkeys.
– Laura Kane, Toronto Star