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In his brief ruling Friday, Judge Brown declined to comment on specific evidence, but said he was not satisfied Ms. Nakhuda had presented “a high degree of assurance” she would succeed in her bid to regain ownership of Darwin at trial. That high bar must be met in order for the court to grant interim possession, he explained.

Judge Brown — who rejected Ms. Nakhuda’s contention that her continued separation from Darwin would cause “irreparable harm” to their bond — said it would be up to the trial judge to untangle some of the documentation and credibility issues raised by lawyers for the plaintiff and defence.

The two sides have traded allegations, with the sanctuary suggesting Ms. Nakhuda abused the monkey to ensure his obedience, and the plaintiff maintaining she was “coerced” and “threatened” into signing a surrender form after Darwin’s capture by Toronto animal-control officers.

The judge has called for an expedited trial, which should take place within the next few months.

Lawyer Ted Charney, who represents Ms. Nakhuda, said his client was “distraught” at the outcome of Friday’s ruling, but he remained optimistic about their chances at trial.

“We consider this to be a bump in the road, and we’re really looking forward to going to trial on this case as soon as reasonably possible,” Mr. Charney said. While Ms. Nakhuda would love to visit Darwin in the meantime, he said, she decided it was not in the monkey’s best interests: “If Darwin starts to see her and then she leaves, it’s just going to be really tough on that little guy.”

Sanctuary lawyer Kevin Toyne said Story Book Farm was “pleased and relieved” at the outcome, citing a “stressful” couple of months for the facility’s volunteers and supporters.

“Darwin is thriving,” added sanctuary founder Sherri Delaney. “He’s doing very well and my team will continue on to do and to provide the best care possible not only for Darwin but for all of our residents currently housed at the sanctuary.”



National Post

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