Do Partnership Principles Apply to Deciding Who Gets the Dog in a Split?
The legal issue of who owns the beloved family pet after separation or divorce has been covered many times by the courts across the country. As I reported previously on a case called Henderson v. Henderson, the Canadian position is clear: “a dog is a dog. At law it is property, a domesticated animal that is owned. At law it enjoys no familial rights.”
This established principle was applied recently in a B.C. case called Brown v. Larochelle – but with a unique spin: the court held that partnership principles could apply to guessing what the parties might have intended if they turned their mind to what would happen to Luna in the event they broke up.
The young couple lived together for a few years. After their relationship ended the woman brought a court proceeding to determine which of them should get to keep a 3-year-old Korean Jindo rescue dog named “Luna”. Alternatively, she asked that Luna be shared on/week off basis, or else that the man repay her $475 representing her half of the $950 they had together paid to adopt her. The man, in contrast, wanted to keep Luna himself.
The court described the lead-up to the dispute this way:
In September of 2015 the parties stopped living together with the [woman] moving to a new apartment that did not permit pets. In June of 2016 the [woman] obtained permission from her landlady to have pets and contacted the [man] about sharing possession of Luna.
That has led to this litigation. The [woman] says there was an agreement to share Luna when it became possible.
The [man] says he paid $2,500 to the [woman] when she moved out to adjust certain matters between them and he believed ownership of Luna was one of those matters.
Since September of 2015 the [man] has had virtually exclusive possession of Luna. The [woman] did take her for some visits/walks some 5 or 6 times after moving out but has had no contact since some time before June of 2016.
After reviewing the Canadian law on the topic, the court confirmed that dogs are treated as property, and distilled the following additional principles from the jurisprudence:
What I extract from the collective wisdom of these cases and some others is as follows:
(a) pets will not be treated in a manner such as children;
(b) courts are unlikely to consider interim applications for pet possession;
(c) Canadian Courts are unlikely to find that joint sharing or some form of constructive trust remedy is apt;
(d) that pets are a variant of personal property;
The above being acknowledged it is also clear that in Canada there is a legal requirement that animals (and in particular dogs and cats) be treated “humanely” unlike any inanimate personal possession.
The court then considered the fact that the couple had acquired Luna together, in what was essentially a “partnership”:
In this case, Luna was acquired by the parties not individually by either one but rather as what legally might be characterized as a partnership or joint venture.
Basic partnership law provides for an equal division of assets on dissolution of the partnership. Many partners make agreements as to how they will deal with assets if the partnership winds up. Many, such as here, do not. …
Applying established partnership principles to the question of the responsibility for Luna post-split, the court added:
… Partnership law requires that partners deal with each other fairly and equitably. One of the maxims of the law of equity is: “Equity presumes that to be done which ought to have been done”. In the context of this case, and having seen and heard the parties, I can assume that if they had directed their minds at the time they acquired Luna or during their joint care of her to what would happen if they split-up they would have agreed that this decision would take into account the best interests of Luna and her humane treatment.
After noting some of the tendered evidence that the Jindo breed of dog requires “strong training, patience, and plenty of walks”, the court concluded that joint use of Luna would not be best for her, based on either her breed, or her individual characteristics. Since it was evident that Luna had “cemented her bond” with the man since the couple’s split, the better decision was to leave her with him.
In the end – and having found no persuasive evidence that the $2,500 the man paid to the woman when they split up was intended to cover Luna in a sort of “property settlement” – the court found that the man was entitled to keep the dog but was required to pay the woman $475 plus minimal court costs.
For the full text of the decision, see:
Henderson v Henderson, 2016 SKQB 282 (CanLII)
At Russell Alexander Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com
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