Michael Ford (post until Oct. 31/18)

Former couple's custody battle over their dog divides N.L.'s top court


ST. JOHN'S, N.L. — In a case that divided Newfoundland and Labrador's top court over what constitutes pet ownership, a man has been awarded sole custody of a dog following a break-up with his girlfriend.

The couple of St. John's purchased a Bernese mountain dog-poodle mix, in October 2014.

After the couple split, they fought over custody of the dog in a case that eventually made its way to the province's Court of Appeal.

First, a small claims court judge determined that the man was the dog’s sole owner, saying that the law considers dogs personal property and that he paid for the pet.

The woman appealed that decision, and a provincial Supreme Court judge found the small claims judge didn't consider the full context of the relationship, concluding the dog should be owned jointly.

The man then appealed that decision, and in a recently released ruling two of three Appeal Court judges agreed that he is the dog's sole owner, saying the small claims judge was right to rely on the traditional approach to determine ownership.

"In the eyes of the law a dog is an item of personal property,'' Justice Charles White said in the panel's written decision, which was supported by Justice Michael Harrington.

"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.''

But the third judge dissented, saying the pair should have joint custody, because people often form strong emotional relationships with their pets.

Justice Lois Hoegg said she believes ownership of a dog involves much more than a determination of who paid for it.

"Ownership of a dog is more complicated to decide than, say, a car, or a piece of furniture, for ... it is not as though animate property, like a dog, is a divisible asset,'' she wrote.

"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.''

In an interview with AdvocateDaily.com, Toronto family lawyer Katherine Robinson says the law relating to pets is an important issue for many people.

“In my experience, people find it difficult to reconcile the love for their pets with their treatment as property in law,” says Robinson, an associate with Shulman Law Firm.

“In this case, the parties were willing to litigate at three different levels of court, which is not an inexpensive process,” she says. “This shows the level of commitment people have towards their pets.”

The dog came to Newfoundland from an Ontario kennel in 2014 and was greeted at the airport by the woman. The man was in Alberta and worked 14 days out of every 21, and she took care of the dog during those times.

Hoegg noted the couple made decisions about the dog together, and that the woman signed for the dog at the airport, took care of the dog and contributed to other expenses.

"The ownership of a dog is a more complex and nuanced question than the ownership of, say, a bicycle,'' she said. "People acquire personal property all the time, usually solely but sometimes jointly, with others, and in doing so, pay little attention to legal rules respecting exactly who is acquiring title to the property.''

White wrote that if the couple was given joint ownership, it could create more problems.

"An order for sharing does not end the conflict,'' he said. "Instead, it creates a regularly scheduled opportunity for conflict that recurs for the rest of the dog's life.''

In her dissent, Hoegg also paused to make something clear: "I must say something more. I am disturbed by the notion that courts should not spend their precious time and resources determining the ownership of dogs.

"In this regard, 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,'' said Hoegg.

"While I do not wish my remarks to be interpreted as advocating or encouraging parties to litigate the ownership and possession of their dogs, I say there is no principled reason why people in a dispute over a dog cannot avail of the courts for assistance in resolving such a dispute.''

Robinson, who was not involved in the matter and comments generally, tells the legal newswire that making legal ownership of pets explicit from the outset may avoid or minimize custody issues at a later date.

“Whether through clear ownership documentation or executing a cohabitation agreement, you want to make sure your legal rights are clearly set out,” she says.

Robinson notes that if the law in this area were to change, it could open the door for a number of different issues.

“For example, does the decision for a dog apply to other animals — a cat, bird, hamster, rabbit, horse or snake? Where do you draw the line from what is seen as a ‘traditional’ pet to one that is less traditional?” she says.

“What factors would a court consider in determining the issues raised if the claim is allowed, such as time sharing, financial support or major decision-making?” Robinson says. “These are issues that are currently considered for children, but how far would the court go in considering these issues for pets?”

© 2018 The Canadian Press

— With files from AdvocateDaily.com


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