So, you and your partner have decided to split.
He gets the 60-inch TV, you get the couch and chair. He gets the washer and dryer, you get the bedroom furniture.
But who gets the dog?
It’s a question the Newfoundland and Labrador Court of Appeal had to determine recently in a case of a St. John’s couple fighting for sole ownership of their Bernese mountain dog/poodle cross, Mya.
The dispute began more than a year ago in small claims court at provincial court, and was appealed to the Newfoundland Supreme Court trial division, before it was brought before the province’s highest court, the Court of Appeal, to settle.
In the end, it came down to what really constitutes pet ownership and whether pets can be viewed as property, like a TV.
For nearly two years, the couple treated Mya as a family member.
When she was flown to St. John’s from Ontario in October 2014, the woman was there to greet her, as her boyfriend worked much of the time out of town. When he was out of town, she kept the dog. When he was in town, he took it.
The couple moved into a new home in late 2014. Since the woman was in town all the time, studying part-time while the man worked away, she spent most of the time with the dog.
When the couple broke up in August 2016, they talked about sharing Mya, but the arrangement didn’t work out. The woman kept the dog and, three months later, she and her ex took out peace bonds against each other.
The man sued the woman in small claims court, seeking an order to have her return the dog to him. He insisted he owned Mya, as he’d made the arrangements with the breeder, and he had paid for the dog and most of the expenses.
The woman argued that Mya was jointly owned. She said the decision to buy the dog was made together and depended on her availability. She pointed out that she spent more time with Mya, acted more like a primary owner and had paid for some ongoing expenses.
The small claims judge concluded the man was the dog’s sole owner, since he paid for the animal. The judge said the woman may have taken care of Mya, but she had never acquired property interest in her by gift or purchase.
She appealed the decision to Newfoundland Supreme Court trial division. That judge overturned the small claims court decision, believing the judge had erred in deciding ownership without having regard to the full context of the couple’s relationship. The Supreme Court judge ruled that the couple owned Mya jointly and set a custody schedule — that the man keep Mya when he’s in town and the woman have her the rest of the time.
"In the eyes of the law a dog is an item of personal property." - Judges Charles White
In assessing the issue, Judges Charles White, Justice Michael Harrington and Justice Lois Hoegg of the Court of Appeal had to look at what the law states — weighing traditional legal principle against social realities.
“In the eyes of the law a dog is an item of personal property,” White stated in the panel’s written decision. “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.”
White said that while the court should be open to modifying legal doctrines to reflect social realities, it should not do so without considering the practical implications of the change.
If the couple was given joint ownership, he said, it would create more problems, “because the legal system is not well equipped to deal with the problems raised by joint ownership of dogs.”
He said a dog simply can’t be divided between parties. If a dog is jointly owned, the court usually orders one co-owner to buy the other out and pay compensation. It can also order the dog to be sold and the proceeds divided.
But neither were an option in this case, as neither wanted Mya for financial value.
Joint ownership — ordering the dog to share alternate homes — usually causes more problems than it solves, White said.
“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.
“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.”
White said the small claims judge was right to rely on the narrower traditional approach to determine ownership and agreed that the man is the dog’s sole owner.
White questioned whether the case should have gone to a higher court in the first place.
“On appeal, the appellate court is limited to granting the relief which was within the jurisdiction of the trial court to grant in the first place,” White stated.
“Perhaps in some case, a superior court sitting in appeal (the Supreme Court trial division) may conclude that it was an error for the court below to seek assistance. I will leave that question for another day.”
Harrington concurred with White’s decision. With two out of the three judges on the panel agreeing, it meant the Supreme Court trial division judge’s decision would be overturned and Mya would be solely owned by the man.
With two out of the three judges on the panel agreeing, it meant the Supreme Court trial division judge’s decision would be overturned and Mya would be solely owned by the man.
Hoegg had a dissenting opinion and didn’t think the man should get sole ownership of the dog, as pets are often viewed by people as more precious than just items in a house.
“Determining the ownership of family pets when families break apart can be challenging,” she said. “Ownership of a dog is more complicated to decide than, say, a car or 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. … Many people are bonded with their dogs and suffer great grief when they lose them.”
Like the Supreme Court trial division judge, Hoegg believed ownership of the dog involves 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.”
Hoegg said the couple chose the dog together and made financial decisions together. She said the woman signed for the dog at the airport, took care of the dog and contributed to expenses.
She said the couple should have joint ownership and if they can’t agree how to work out arrangements, they can file an application at Supreme Court to resolve their differences, “like any two or more other litigants could do respecting a dispute over property.”
However, Hoegg finished by saying that because of the emotional bond between people and their dogs, such cases are not frivolous or a waste of the court’s time and resources.
“Our civil and family courts are routinely engaged in cases of which the spoils are a whole lot less than a family dog,” she said. “As a society, we accept without question that our courts exist to resolve disputes that parties cannot resolve themselves. That is a hallmark of a just society and a justice system where the rule of law governs.
“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.”