Property Division, Sharing & The Matrimonial Home

Pets and Break-ups:  Is “Pet Custody” the Answer?

Written by Russell Alexander / (905) 655-6335

To some, it may seem trivial, and far down the list of items that a separating or divorcing couple should concern themselves with.  But for others, the Newfoundland Court of Appeal’s recent ruling will help to clarify a legal question that has vexed courts across the country:

Who gets custody of a pet, when partners split up?  And what if one partner bought the pet, but the other spent more time caring for it?

In Baker v Harmina, the Appeal Court framed the particular facts of the case this way:

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.

Mya came to Newfoundland in October 2014 from a kennel in Ontario.  She was greeted at the airport by Ms. Harmina.  Mr. Baker was in Alberta, where he worked 14 days out of every 21.  When he was out of town Ms. Harmina kept the dog; when he was in town, he took it.

Even though the man paid for the dog, the woman spent more time with it and was responsible for most of its care.  So when they broke up in 2016, the woman kept the dog.   Although they discussed possibly sharing it, the arrangement did not work out (and indeed they ended up taking out Peace Bonds against each other).

Their dispute ended up in Small Claims Court, where the judge agreed with the man, concluding that he had bought the dog alone, and for himself only.  The woman appealed, insisting that the dog was jointly owned, as evidenced by her greater time spent with the dog, and the fact she paid for some pet-related expenses.  The first appeal court agreed with her and reversed the prior ruling;  it then set a “custody” schedule for the former couple to share the dog.

The man then brought a second appeal to the Newfoundland Court of Appeal. In evaluating whether the dog Mya was jointly-owned, that Court began its ruling this way:

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.

The two prior courts had approached the matter using different principles:  The Small Claims Court essentially used a traditional property-based approach, looking only at the fact that the man had paid for the dog, and that the woman had never been given or sold a legal interest in her.  In contrast, the first appeal court took a broader, more socially-based view, looking at the relationship between the former couple and the dog, rather than at the chain of ownership.  Both approaches found some support in other provinces (including Ontario).

However the less-traditional approach, which potentially recognized joint ownership, came with a host of potential problems:  Since a dog was “indivisible”, courts will often order that one joint owner buy out the other, or sell the dog and have the proceeds divided.

The Appeal Court said:

This response is unsatisfying to many people who keep dogs as pets. Neither Ms. Harmina nor Mr. Baker wants Mya for her financial value.  They want her as a pet and companion.  The Court can declare them joint owners, but it cannot jointly give them what they want.

The Appeal Court added that “the legal system is not well equipped to deal with the problems raised by joint ownership of dogs.”  It was also reluctant to endorse the “custody schedule” plan, since it could give rise to “a regularly scheduled opportunity for conflict [between the parties] that recurs for the rest of the dog’s life.”  The Court said:

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.

In the end, Newfoundland Court of Appeal concluded that the Small Claims Court had correctly relied on the more traditional approach that recognized the man’s ownership, stating:

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 declared the man as the sole owner.

For the full text of the decision, see:

Baker v Harmina

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About the author

Russell Alexander

Russell Alexander is the Founder & Senior Partner of Russell Alexander Collaborative Family Lawyers.