In the recent Newfoundland Court of Appeal decision in Baker v. Harmina, 2018 NLCA 15, the infrequently litigated issue of pet ownership issue was considered by the Court.
This case has had wide media discussion not because of the outcome of the case (which as expected treated pets as property), but because of the dissenting opinion of Justice Louis R. Hoegg. Unlike the majority decision, Justice Hoegg applied the following test set out at paragraph 25 of the Nova Scotia Small Claims Court decision in MacDonald v. Pearl, 2017 NSSM 5, to determine the issue of ownership of a dog, Mya:
a. Animals (dogs included) are considered in law to be personal property;
b. Disputes between people claiming the right to possess an animal are determined on the basis of ownership (or agreements as to ownership), not on the basis of the best interests of the animal;
c. Ownership of–and hence the right to possess–an animal is a question of law determined on the facts;
d. Where two persons contest the ownership of an animal, the court will consider such factors as the following:
i. Whether the animal was owned or possessed by one of the people prior to the beginning of their relationship;
ii. Any express or implied agreement as to ownership, made either at the time the animal was acquired or after;
iii. The nature of the relationship between the people contesting ownership at the time the animal was first acquired;
iv. Who purchased or raised the animal;
v. Who exercised care and control of the animal;
vi. Who bore the burden of the care and comfort of the animal;
vii. Who paid for the expenses of the animal’s upkeep;
viii. Whether a gift of the animal was made at any time by the original owner to the other person;
ix What happened to the animal after the relationship between the contestants changed; and
x. Any other indicia of ownership, or evidence of any agreements, relevant to the issue of who has or should have ownership or both of the animal.
This more expansive test requires the court to consider more evidence than a simple ‘ownership’ test that would look primarily at who acquired the animal. This is important because courts have historically been reluctant to engage in a broad review of ownership of pets, and treated pets as they would a coffee table or lawn mower. The court traditionally only considers who purchased the pet and the chain of legal ownership. Pet owners argue that pets are unlike coffee tables or lawn mowers, but historically found little jurisprudence to support their claims for the pet during a divorce.
While this decision is not binding on lower courts as it is a dissenting opinion, the thought and careful reasoning of Justice Hoegg provides a road map for other litigants who wish to make similar claims. It is an important issue to watch going forward given the increasing importance of pets in people’s lives.
If you have questions about your rights and obligations relating to your Divorce, or custody and access dispute contact Windsor family law lawyers Mary Fox, Tanya McNevin or Thomas MacKay today by calling 519-259-1820. We serve clients in Windsor, Tecumseh, Lasalle, Essex, Leamington, Kingsville, Belle River, Lakeshore, and throughout southern Ontario.