Dog not just another asset to be divided, dissenting judge argues

Last year, I reported a decision by Justice Rick Danyliuk of the Saskatchewan Court of Queen’s Bench in which he took a dim view about having to decide the ownership of a separating couple’s dogs.

Justice Danyliuk confirmed the traditional view that dogs are property and the narrow view used to decide ownership: the person who owns the dog keeps it. In determining ownership, the person who paid for the dog or whose name is on the registration certificate is the owner.

If both paid for the dog or are the registered owners, the court will not make an order for “visitation” arrangements, but instead may well order that the dog be sold and the net proceeds divided between the parties.

That legal reality doesn’t usually go over well in the dog park, where owners refer to each other as a dog’s “mom” or “dad,” revealing much about how we perceive a dog’s place in the family unit.

Happily for dog lovers, a recent dissenting opinion by Justice Lois Hoegg of the Newfoundland Court of Appeal in Baker v. Harmina may pave the way for a different approach.

The case revolved around Mya, a Bernese-poodle cross, who found her way to Newfoundland from Ontario by air and was greeted at the airport by Ms. Harmina, who was dating Mr. Baker at the time. Mr. Baker worked in Alberta 14 days out of 21. Ms. Harmina had Mya while Mr. Baker was out of town; when Mr. Baker returned, he took Mya. When the parties moved in together, Ms. Harmina spent more time with Mya than did Mr. Baker, as he was out of town, working.

After the parties separated, Ms. Harmina kept Mya. While they talked about sharing her, by November 2016, each had taken out a peace bond against the other.

Sharing Mya was clearly not an option.

The dispute about Mya started in the Small Claims Court of Newfoundland, which held that Mr. Baker alone bought Mya. Although Ms. Harmina advanced part of the purchase price, Mr. Baker fully reimbursed her for the cost. While Ms. Harmina looked after Mya and was close to her, Mya was never gifted to her or purchased by her. As such, Mya belonged to Mr. Baker.

CONTEXT

Ms. Harmina appealed to the Newfoundland Supreme Court, Trial Division, which adopted a contextual view of deciding ownerhip. The court held that Mya was owned jointly and was to be with Ms. Harmina while Mr. Baker was out of town, but otherwise with Mr. Baker.

The Newfoundland Court of Appeal, sitting with a panel of three judges, decided 2-1 that expanding “the scope of joint ownership (of dogs) … would be unfortunate in many ways, because the legal system is not well equipped to deal with the problems (of dog ownership).” Because a jointly owned dog is “indivisible,” the only real remedy would be to order the dog be sold and the net proceeds be divided — a highly unsatisfactory result for both parties.

The majority commented that “neither Ms. Harmina nor Mr. Baker want 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 majority of the Court of Appeal also took aim at the “visitation” schedule, saying, “(These orders) usually cause more problems than they solve…. (They) create a regularly scheduled opportunity for conflict that recurs for the rest of the dog’s life.”

The majority then concluded by saying that “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.… (It is) right to rely on the narrower traditional approach to determining ownership.”

DOG LOVERS

Justice Lois Hoegg, clearly a dog lover, dissented, bringing hope to separating dog lovers everywhere.

While Justice Hoegg agreed that dogs are property, she disapproved of the narrow view of deciding ownership. Her reasons will resonate with dog owners everywhere:

“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…. I am of the view that the ownership of Mya involved much more than a determination of who paid for her at the time of purchase. The ownership of a dog is a more complex and nuanced question than the ownership of, say, a bicycle.”

Justice Hoegg went on to approve a non-exhaustive list of factors when considering the ownership of the family dog, including whether one person brought the dog into the relationship, was there express or implied ownership when the dog was acquired or after, what type of a relationship the people had when the dog was acquired, who bought or raised the pet and exercised care and control, who cared for the pet and paid its expenses and what happened after the human relationship broke down.

Justice Hoegg also responded to the argument that the courts ought not be cluttered by dog cases, saying, “I am disturbed by the notion that courts should not spend their precious time and resources determining the ownership of dogs…. I emphasize the emotional bonds between people and their dogs, and say that fair decisions respecting the ownership and possession of dogs can be much more important to litigants and to society than decisions respecting the ownership of a piece of furniture or a few dollars.”

Dog lovers everywhere should be cheered by Justice Hoegg’s dissenting opinion.

This article was originally published in the National Post.