We’ve previously blogged about what happens to pets following a separation or divorce. The unfortunate answer for many pet owners is that, legally, pets are treated no differently than any other piece of property (i.e. car, etc.), and therefore, unlike children, cannot be the subject of custody battles. Instead, pets are subject to division of property.

This week, we explore a recent decision out of Newfoundland that may have opened the door to pets being treated more like members of a family, and less like a piece of property.

A Dispute Over a Dog

The Newfoundland Court of Appeal simply and aptly described the matter before it:

Mya is a cross between a Bernese mountain dog and a poodle.  For nearly two years she was treated as a family member by David Baker and Kelsey Harmina.  Now they have split up, and this case is about who gets to keep her.

The former couple adopted Mya in October 2014 and brought her to Newfoundland. Mya was greeted at the airport by Ms. Harmina, as Mr. Baker was in Alberta at the time (where he worked for 14 of every 21 days). When they first adopted Mya, the couple did not live together. When Mr. Baker was away working, Ms. Harmina would keep Mya at her home. When Mr. Baker was home, he kept Mya at home.

Ms. Harmina and Mr. Baker moved in together by late 2014. Ms. Harmina was a part-time student at the time and was home often. As such, she spent more time caring for the dog since Mr. Baker continued to commute out West for work.

The couple’s relationship ultimately ended in August 2016. After the split, Ms. Harmina kept Mya. Talks about sharing care of the dog were attempted but did not work out.

Small Claims Action

Mr. Baker eventually sued Ms. Harmina in small claims court, seeking an order that Mya be returned to him. He argued that he owned Mya outright since he had made the arrangements with the breeder, had paid for her purchase and the majority of her expenses, and had never explicitly given Ms. Harmina a share of the dog.

Ms. Harmina argued that Mya was jointly owned- the couple’s decision to adopt her had been mutual and it depended on Ms. Harmina’s availability to care for Mya while Mr. Baker was away working. Moreover, around the time of the dog’s adoption, there had been a number of e-transfers back and forth between the couple for a variety of household items. In addition, Ms. Harmina claimed she spent more time with Mya in the position of primary owner and had also paid for some of her ongoing expenses.

The small claims judge concluded that Mr. Baker had purchased Mya alone and for himself. While Ms. Harmina had contributed to the purchase of the dog, she did so on Mr. Baker’s behalf since he had been having issues with his online banking account at the time, and she was eventually reimbursed for the full purchase price. The small claims judge further concluded that while Ms. Harmina had taken care of Mya and become close to the dog, she never acquired a property interest in her (either through purchase or through a gift).

Appeal to Higher Court

Ms. Harmina appealed the small claims decision to the Newfoundland Supreme Court Trial Division.

The appeal judge found that the small claims judge had erred in deciding Mya’s ownership without having full regard to the full context of the relationship between Ms. Harmina and Mr. Baker. The appeal judge concluded that the parties owned Mya jointly, and ordered that Mya stay with Mr. Baker when he was in town, and with Ms. Harmina while he was away.

Mr. Baker appealed this decision.

The Court of Appeal

The Court of Appeal identified a number of issues that had to be analyzed in the context of this dispute, including whether Mya was jointly owned by the parties.

Was Mya Jointly Owned?

The Court of Appeal noted that:

In the eyes of the law a dog is an item of personal property.  That doesn’t mean dogs aren’t important. It means that when two people disagree about who should get a dog, the question is not who has the most affection for the dog or treats it better (so long as both parties treat the dog humanely).  The question is who owns it [emphasis added].

The Court of Appeal went on to note that the original small claims decision and the initial appeal decision presented two different models of how a court should determine pet ownership. The small claims judge’s decision had focused on the chain of ownership and had looked for discrete financial transactions where ownership of Mya would have changed hands (i.e. who had bought Mya from the breeder? Had that person given or sold interest in Mya to the other). The small claims judge had concluded that since Mr. Baker alone had purchased the Mya and never transferred an interest in Mya to Ms. Harmina, he remained Mya’s sole owner.

The Court of Appeal noted that this approach was consistent with a line of earlier decisions dealing with pets in the context of a relationship that had come to an end, which had all treated pets as property. In contrast, the initial appeal judge’s approach had taken a broader view of the relationship between the parties and the dog. Instead of looking for a chain of ownership with discrete transactions, the original appeal judge’s reasons emphasized the fact that the parties had “picked out the dog together while dating”, that they had shared Mya’s expenses, and that Mya had spent much of her time under Ms. Harmina’s sole care. There have been previous decisions that have taken such a contextual approach.

The Court of Appeal noted that:

At first glance, this case seems to pit traditional legal doctrine against social realities.  The small claims judge’s approach reflects the traditional theory that property only changes hands through deliberate transactions, particularly gifts or purchases.  The appeal judge’s approach seems more sensitive to the way in which, over the course of a romantic and domestic partnership, “my” dog can become “our” dog, without any explicit moment of gift or purchase.

The Court of Appeal went on to say that while courts should be open to modifying legal doctrine to reflect social realities, it should not do so without considering the practical implications of that change. While the original appeal judge’s approach would make it significantly easier to establish that a pet is jointly owned in law, such an approach would expand the scope of joint ownership and that “this would be unfortunate in many ways, because the legal system is not well equipped to deal with the problems raised by joint ownership of dogs.”

The Court of Appeal noted that a dog is “indivisible” and cannot simply be divided between a former couple. To address this reality in situations where dogs are jointly owned, courts will generally order one co-owner to buy the other out and pay them compensation or order the dog to be sold to a third party and divide the proceeds between the former couple.  Such an approach is unsatisfying to many people who keep dogs as pets, since they want that pet for companionship rather than for that pet’s financial value.

In situations such as the one at hand, the Court of Appeal noted:

What about the order under appeal, under which the dog alternates homes?  Assuming for the moment that the Court can make such orders, they usually cause more problems than they solve.  An order for sharing does not end the conflict.  Instead, it creates a regularly scheduled opportunity for conflict that recurs for the rest of the dog’s life.

The Court went on to say that this would create the same type of conflict that tends to exist in disputes involving children:

Every time one party is late for the drop-off, or sick, or on vacation; when the dog is sick and vet bills need to be shared; when the dog is injured in one party’s care—there is an opportunity for conflict.  These opportunities can be particularly tempting for former romantic partners who end up in court litigating the ownership of a pet.

The ongoing stress, time in court, and legal fees that come along with litigating such disputes have made courts reluctant to make orders requiring shared supervision of a pet following the end of a relationship:

While expanding the scope of joint ownership seems at first to be progressive and forward thinking, it is unlikely to be a kindness either for the parties or for the public. 

The Court of Appeal concluded, in a majority decision, that the small claims judge had been right to rely on the narrow, traditional approach to determining ownership of a pet following a separation and upheld the conclusion that Mr. Baker was Mya’s sole owner.

Dissenting Opinion

One of the three appeal judges had a dissenting opinion, noting that while determining ownership of property in dispute is inherent in determining who that property should be given to in a dispute, pets should not be considered property.

The dissenting judge noted:

Determining the ownership of family pets when families break apart can be challenging.  Ownership of a dog is more complicated to decide than, say, a car, or a piece of furniture, for as my colleague observes, it is not as though animate property, like a dog, is a divisible asset.  But dogs are more than just animate.  People form strong emotional relationships with their dogs, and it cannot be seriously argued otherwise.  Dogs are possessive of traits normally associated with people, like personality, affection, loyalty, intelligence, the ability to communicate and follow orders, and so on.  As such, many people are bonded with their dogs and suffer great grief when they lose them.  Accordingly, “who gets the dog?” can pose particular difficulty for separating family members and for courts who come to the assistance of family members when they cannot agree on “who gets the dog”.

She went on to list some factors that would be relevant to determining ownership of a dog.

Lessons Learned

It is clear that the debate over what happens to pet following the end of a relationship is continuing. Deciding what to do with a family pet following a separation or divorce can be emotional and stressful. Guidance from an experienced family lawyer can help separating couples make decisions and guide them into coming to a mutually satisfactory plan with respect to their furry or feathered friends. If you have questions about making decisions about pets following the breakdown of a relationship please contact Windsor family lawyer Jason P. Howie, online or at 519-973-1500.