Who Let The Dog Out (Does Not Necessarily Indicate Ownership)

Written on behalf of Arbesman Hamilton LLP

Determining who gets the custody of children can be a contentious issue when a couple separates or gets divorced. However, as a Newfoundland Court of Appeal decision demonstrates, ownership of a pet can also throw a wrench into things.

Purchasing the Dog As A Couple

The dog at the centre of this dispute was purchased from an Ontario breeder by a couple in October 2014 and flown to Newfoundland. During the first few months of dog ownership the couple lived in separate homes. The male worked two weeks at a time in Alberta and then came home to Newfoundland for a week at a time. The female took care of the dog while he was away, and he took care of it when he was home.

The couple moved into a house together in late 2014, with the male still working away while the female studied. As a result of their work and living arrangements the female spent more time caring for the dog than the male.

The Breakup

The couple broke up in August 2016. They had originally talked about sharing custody of the dog, but it didn’t work out. They took out peace bonds against each other in November 2016. The male sued the female in small claims court, arguing he owned the dog outright and demanding the female return the dog to him. He claimed he paid for the dog and paid most of the related expenses, never giving the female a share of the dog.

The female’s position was that the dog was jointly owned, since the couple had decided to buy it together and the male had depending on the her to be available to help care for it. She argued she had paid for some of the dog’s expenses and acted like a primary owner.

Small Claims Decision and First Appeal

The judge in Small Claims Court concluded the dog was the property of the male since he had paid for the dog (though he did borrow money from the female to purchase it). The judge determined the female had not acquired ownership by gift or purchase.

The female appealed the decision and the case went to the Supreme Court Trial Division where the judge found the small claims judge had erred in deciding ownership. The appeal judge found the small claims judge had not taken the full context of the couple’s relationship into account. The result of the appeal was that the male would keep the dog while he was home and the female would keep the dog while the male was out of town.

Which Decision Was Correct?

The male appealed further, and the matter went before the Court of Appeal to determine whether the lower court judge had made an error in setting aside the small claims judge’s decision and setting a “custody” schedule.

The Court of Appeal’s analysis began by stating a dog is not like a child when it comes to ownership. A dog is, in matters such as this, an item of personal property. This means questions such as who loves the dog or who cares for it aren’t relevant in deciding who the dog belongs to. The small claims court had looked at the chain of ownership in determining who owned the dog, focusing on who had paid for the dog and whether ownership of the animal had ever changed hands.

Meanwhile, the appeal judge took a broader look at the relationship between the parties and the dog, choosing to consider the couple’s mutual decision to purchase the dog, and choosing that dog in particular while still in a relationship. The appeal judge also gave some weight to the female having been the primary care giver to the dog for much of its life.

The majority decision for the court stated that the lower court judge’s approach had loosened the traditional legal approach to joint ownership. The decision says “The Court should be open to modifying legal doctrines to reflect social realities, but it should not do so without considering the practical implications of the change,” noting that accepting this decision would put a burden on the courts, one it is not equipped to handle.

The court also noted that dogs can’t be physically divided. While joint custody could be considered, the decision states that doing so would not solve conflict between the parties. Furthermore, joint ownership could result in more litigation should vacations, vet bills, injury, or other issues of pet ownership arise.

There are a number of issues that can arise when a couple separates or gets divorced. At Arbesman Hamilton LLP we believe in understanding our clients’ unique situations and look to protect your financial future during what is a difficult time. We can help with custody and access as well as the division of property. Please call us at 416-481-5604 or reach us online in order to schedule an appointment today.