Full disclosure. I don’t practice family law;
However, a recent decision of the Newfoundland and Labrador Court of Appeal (Baker v. Harmina, 2018 NLCA 15) intrigued me because it involves who gets the family dog after a relationship breakdown. The case involves Mya, a mix between a Bernese mountain dog and a poodle, who lived with David Baker and Kelsey Harmina for about two years before they separated. The case started in Small Claims, was appealed to the Newfoundland and Labrador Supreme Court and then further to the Newfoundland and Labrador Court of Appeal.
We have a previous blog post on a case from the Saskatchewan Court of Queen’s Bench https://keymurraylaw.com/so-who-gets-the-dog/. In the Saskatchewan case, the Court essentially determined that dogs are property.
The quick summary of what the majority of the NFLD C.A. found in Baker v. Harmina, supra, is that the Small Claims judge was right that dogs are property and it came down to who paid for the dog. The Court ordered that Mya be returned to David Baker and agreed with the reasoning of the Small Claims judge that Mr. Baker paid for the dog.
This case has gotten quite a bit of media attention recently, and like others, my interest in this case is really in the dissenting opinion of the Court by Justice Lois Hoegg.
Justice Hoegg’s opinion was that the decision of the Supreme Court should be upheld and that Mya should be jointly owned between Mr. Baker and Ms. Harmina. Justice Hoegg looked at more than just who paid for the dog, and determined that ownership of pets are more complicated than ownership of other “property.”
Justice Hoegg writes at paragraph 48:
“Determining the ownership of family pets when families break apart can be challenging. 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. 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. Accordingly, “who gets the dog?” can pose particular difficulty for separating family members and for courts who come to the assistance of family members when they cannot agree on “who gets the dog”.”
And further at paragraph 59:
“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. Litigation over the ownership and possession of dogs is far from unknown to the courts, which is an indicator that the ownership and possession of dogs is very meaningful to people. 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. Our civil and family courts are routinely engaged in cases of which the spoils are a whole lot less than a family dog. 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.” [Emphasis Added]
To many of us with animals, the dissenting opinion hits home and leads us to wonder whether it will affect decisions in future cases where the “custody” of our pets is at issue.
If you are involved in a situation where you and a former partner cannot come to an agreement on the division of your property, whether this involves a pet or an inanimate object, one of Key Murray Law’s family law practitioners would be pleased to offer assistance.
Cynthia A. Taylor
Legal information appearing in this article and elsewhere on Key Murray Law’s website is intended for informational purposes only and is not intended to substitute for or replace any legal or other professional advice. If you have specific concerns or a situation in which you require legal advice, you should consult directly with one of our lawyers.