Jodi Lazare is an assistant professor at the Schulich School of Law at Dalhousie University. Peter Sankoff is a professor at the University of Alberta Faculty of Law.
When couples separate, sorting out who gets to keep the furniture is always complicated. But it’s usually easier than deciding who gets to hold on to the family dog. In the courts however, these two very different questions are treated the same way. However much our senses might tell us otherwise, to the law a dog is simply a “thing” – something to be purchased, owned and transferred. This needs to change. It’s time for the legal system to recognize that companion animals are not furniture.
Earlier this month, in one of the first cases on “pet custody” to ever reach the appellate level, the Newfoundland and Labrador Court of Appeal resolved the ownership of a dog following the breakup of a relationship. Unfortunately, two of the three justices who heard the appeal applied a traditional property analysis, determining that the person who purchased the dog was, by definition, its rightful owner. Dogs may be important, Justice Charles White wrote, but they are nonetheless property and their ownership should be determined according to standard property law principles.
It is undeniable that our legal system, following precedents established centuries ago, draws no distinction between sofas and dogs. But the millions of Canadians who live with a dog undoubtedly struggle with this designation, preferring to think of their beloved canines as members of the family, rather than possessions. According to data published by the Canadian Veterinary Medical Association in 2014, 57 per cent of Canadian households include a companion animal.
Although the Newfoundland decision was disappointing, it was not unanimous. Writing in dissent, Justice Lois Hoegg refused to apply a traditional property analysis, concluding instead that the purchaser’s former romantic partner was the joint owner of Mya, a cross between a Bernese Mountain Dog and a Poodle.
Although the former partner in question had not paid for Mya, her other actions demonstrated a strong level of attachment. She helped choose Mya as a puppy, picked her up from the airport upon arrival in Newfoundland from the breeder in Ontario, “cared for her, fed her, walked her, trained her and gave her affection.” She was, as the evidence seemed to indicate, the dog’s primary caregiver, taking care of Mya whenever her partner was out of the province for work, as he frequently was.
While the majority’s decision unquestionably prevails for now, Justice Hoegg’s dissenting reasons remain critically important for the future.
First, the opinion offers a powerful and much-needed rebuke to the notion, oft-repeated by judges throughout the country, that resolving questions of pet ownership are not worth court time because judicial resources are better spent on more “serious” problems. This dismissive approach undermines the very real need of those in broken relationships to maintain a connection with the animals they have loved and cared for, notwithstanding the refusal of a former partner. As Justice Hoegg wrote, “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.”
Second, the dissenting reasons reflect the common sense notion that companion animals are not like other forms of property, and that resolving who “owns” them requires more than just asking who put down the credit card at the moment of purchase. Justice Hoegg sensibly suggests that courts faced with ownership questions consider a range of factors, including “who exercised care and control of the animal [and] who bore the burden of the care and comfort of the animal.” In other words, who had a meaningful relationship with the animal in question.
Consideration of these factors recognizes the nature of animals as unique forms of property and captures the idea that ownership means more with respect to a dog than relative to a table or a bookshelf. The former involves a relationship, the fate of which should not be decided according to traditional property law concepts of “purchase” and “title.” Maybe it’s not yet time to assess who should get custody of our pets, or access to them, by assessing what’s in the animal’s “best interests” as we do for children, but there is no denying that dogs have an interest in maintaining their relationships with the humans who love them and vice versa.
It is well past time for the legal system to recognize the important place companion animals hold in the lives of many Canadians and adjust the law to reflect that importance accordingly.