By Suzana Gartner & Krista Staley
Pets are considered to be integral members of the family unit. They command many different roles in a family’s household including companionship or acting as substitute children. Animals have the capacity to uphold these different roles because, like humans, they have innate personalities, command the ability to think and feel, and they are able to experience a wide range of emotions. In fact, our beloved pets are social creatures; they crave social connection, can experience loneliness, and they form attachments with their human guardians. In a national survey, it was revealed that 61% of Canadians share their home with a pet, and 44% of millennials shared that caring for an animal is akin to ‘practice’ for one day raising children. However, despite the fact that many Canadians view their animal as a family member, the courts do not reflect this way of thinking. In Canada, animals are considered personal property which means that your dog or cat has the same amount of rights as your personal property, such as your kitchen chair or television set. Sadly, your companion animal is granted limited to no rights in the eyes of the court.
What happens when families or partners go through a change and the couple’s relationship ends? When two people separate or divorce, who has ownership of the animal you consider to be your family member, best friend or child? Traditionally, courts have continued to rely on an ownership model that views the individual who purchases the animal as having sole possession over that ‘property.’ Since animals are considered personal property, there is no current law that supports the idea of shared custody in Canada. In the case of Henderson v Henderson, the court argued that pet custody cases were a waste of judicial resources and should be discouraged within our justice system. However, in a more recent case, Baker v Harmina, we begin to see a shifting mindset with respect to the concept of pet ownership in the courts when considering different relationships. Although the traditional model of ownership is restored by the Court of Appeal of Newfoundland and Labrador, the decision made by the dissenting judge in this case is monumental for pet custody law.
The timeline in this case involves an ongoing dispute between a separated couple, David Baker and Kelsey Harmina, over the ownership of a dog named Mya, a cross between a Bernese Mountain Dog and a Poodle. Although Baker purchased Mya, his work took him out of province for 14 days out of every 21, where Harmina would take care of Mya on a full-time basis. Based on Baker’s work schedule, Harmina was under the impression that since she predominately cared for Mya, there was an agreement of joint ownership. However, the small claims judge ruled that Baker was the sole owner of Mya since his purchase of Mya demonstrated that he held the property interest. Harmina’s emotional attachment to Mya and care while Baker was away for work was not determinative of a personal property interest. Harmina appealed this decision to the Supreme Court Trial Division where a provincial Supreme Court judge found that the small claims judge had erred in his reliance on the traditional model of ownership and his omission of any consideration towards Harmina’s relationship with Mya. The appeal judge concluded that the parties had entered into a joint ownership of Mya. Baker then appealed that decision to the Court of Appeal of Newfoundland and Labrador where two of the three judges agreed that Baker was the sole owner of Mya since he was the one who initially purchased her.
Although the ultimate decision can be argued to not be in the best interest of Mya, the dissenting judge, Justice Lois Hoegg, takes into consideration the interest of all parties by arguing for a shift away from the traditional model of pet ownership. In the view of Justice Hoegg, based on how society views household pets, ownership doesn’t just simply equate to the financial purchase of the animal.
Taking into account the strong emotional attachments humans create with their beloved companion animals, the concept of pet ownership should be viewed on a much broader scale. Considered to be integral family members, animals are more highly regarded versus the property status they are currently granted in law. Justice Hoegg is of the belief that when it comes to the custody and ownership of animals it’s not a burden on the justice system and should be placed with more importance than it currently is. When it comes to animal law, a shift in legal thinking is crucial to improve and enhance the way our laws view animal interests. This outcome can be compared to the cliché “we lost the battle but won the war” in that although this case restores the traditional model of ownership, it also introduces the notion of resistance to it.
At Gartner & Associates Animal Law, we have successfully assisted clients in gaining custody and access to their beloved pets, working with the client to create fair custody arrangements, and drafting pet co-ownership agreements establishing claim and ownership of animals using a mediated approach. We consider the ‘best interests’ of the animals when we advise on shared ownership.
In order to avoid litigating disputes over legal ownership when couples split up and instead of having to proceed to court and allow a judge to make a decision solely based on proof of ownership, we work with our clients to come up with creative solutions through our ADR approach. Our unique tailored approach and expertise in animal law allows us to advise clients on pet custody arrangements and create pre-nuptial agreements that set out terms considering ‘the best interests’ of the animals and assist our clients to prevent future disputes from arising and ending up in the courts. On the other hand, in some situations, shared custody and access is not the best solution or even an option. In these cases, Gartner & Associates can assist clients to obtain full ownership claim to their beloved pets by defending our client’s claim. Our companion animals are members of our families, it’s time we put their interests first. For more information and if you are experiencing a difficult situation with an ex-partner, please contact our firm and we can schedule an appointment and advise you: firstname.lastname@example.org.
CTV News, Divorcing your dog: Ruling opens door to new view of pets in splits, accessed from: https://www.ctvnews.ca/lifestyle/divorcing-your-dog-ruling-opens-door-to-new-view-of-pets-in-splits-1.3908212.
Animal Justice, Episode 5: Who Gets the Dog? The Battle for Pet Custody, accessed from: https://www.animaljustice.ca/podcast/episode-5-who-gets-the-dog-the-battle-for-pet-custody.
Henderson v Henderson, 2016 SKQB 2016
Baker v Harmina, 2018 NLCA 15
The Canadian Press, Who gets the dog? Former couple’s custody battle divides N.L’s top court, accessed from: https://www.thespec.com/news-story/8325029-who-gets-the-dog-former-couple-s-custody-battle-divides-n-l-s-top-court/.