by Emily Murray, Litigation Associate
“The ownership of a dog is a more complex and nuanced question than the ownership of, say, a bicycle.”
[1]
According to Canadian courts, when a couple separates, whoever paid for the pet is the owner, unless the pet was bought as a gift.[2] If the cost of buying the pet was shared, the court will usually order one co-owner to buy the other out.[3]
A clear example of the problems with this approach is the 2018 decision of Baker v. Harmina (2018 NLCA 15) by the Newfoundland Court of Appeal. A common law couple was separating and disputing the ownership of a Poodle/Bernese mountain dog mix named Mya. [4]
The parties bought Mya while they were living together. Although Baker paid for Mya, his work schedule meant he would be away from home for two weeks at a time. [5] Harmina, therefore, would care for Mya while Baker was away.[6]
The Small Claims Court heard the trial and decided that Baker was the owner.[7] The Superior Court Trial Division heard the appeal and decided that the parties owned Mya jointly and Harmina should care for Mya while Baker was out of town.[8]
The decision was appealed again, this time to the Newfoundland Court of Appeal. The Court of Appeal overturned the Superior Court’s decision and held that Baker was the owner.[9]
Should valuable judicial resources be used to decide on pet ownership?
The majority of the Newfoundland Court of Appeal said no. Valuable judicial resources could be used to resolve other disputes.[10]
How does a Canadian court decide pet ownership for separating couples?
Harmina did not claim damages. She claimed joint-ownership of Mya.[11] To determine if Harmina had an ownership interest in Mya, the Court had to decide if Baker was unjustly enriched. [12]
Unjust enrichment is claimed when one party retains individual ownership of an asset that should be owned jointly due to the claimant’s care and investment.[13] The question was whether Baker was “unjustly enriched” by Harmina walking, feeding, training, caring for and giving affection to Mya.[14]
The problem with this claim, as it was framed, was that if the court found that Baker was unjustly enriched and ownership was shared, the Small Claims Court did not have jurisdiction to make this finding. The Superior Court, as the appeal court, could not impose an “equitable” remedy such as “unjust enrichment” or any other trust claim because the Small Claims Court, the trial court, did not have “equitable jurisdiction”.[15] So, the Court did not even complete an unjust enrichment analysis. Despite that, the court said in obiter that even if unjust enrichment was found, a constructive trust or shared ownership would not be appropriate in the circumstances.[16]
So even if Baker was unjustly enriched and the court had jurisdiction to order shared ownership of Mya, the court would still not order it.
It would not be appropriate to force the parties to share a dog.[17] It would create continuing conflict so there would be no resolution to the dispute and in fact may exacerbate it.[18] Before coming to court, the parties talked about sharing Mya but were unsuccessful. They even took out peace bonds against each other.[19] “The Court can declare them joint owners, but it cannot jointly give them what they want.”[20]
Since both parties wanted Mya for her companionship, not her financial value, the Court would not order joint custody of pets. [21]
Joint pet-ownership can cause additional conflicts.[22] Courts are aware of these problems from dealing with child custody disputes.[23] Courts are not equipped to deal with the stress, heartache, wasted time and legal fees that arise from joint pet-ownership disputes.[24]
The majority of the Newfoundland Court of Appeal decided that Baker had purchased Mya so he was her sole owner.[25]
Is this approach to pet ownership at separation correct?
Justice Hoegg, in dissent, disagreed. People form emotional bonds with their pets. [26] There is no reason why people in a dispute over a dog should not be heard by Canadian Courts, Justice Hoegg found.[27] Parties in family law come to court for far less, she wrote. [28]
According to Justice Hoegg, evidence on pet ownership has to be considered as a whole. The fact that Baker paid for Mya did not determine Mya’s ownership.[29]
“People acquire personal property all the time, usually solely but sometimes jointly, with others, and in doing so, pay little attention to legal rules respecting exactly who is acquiring title to the property.”[30]
Justice Hoegg, would have found that the parties were joint owners because:[31]
- They and picked out the dog together while in a relationship.[32]
- When Mya first arrived in Newfoundland, Harmina signed for her and took possession.[33]
- They shared expenses relating to Mya.[34]
- They acted as agents for each other by caring for Mya.[35]
- Harmina did not seek reimbursement for her contribution to Mya’s expenses.[36]
- Mya always lived with Harmina during the relationship, with and without Baker.[37]
- Baker only lived with Mya and Harmina for 6-day periods when he was not away working.[38]
- After separation, Mya lived with Harmina until attempts were made to share the dog.[39]
Since the appeal court did not have jurisdiction to impose a schedule for sharing Mya, Justice Hoegg would have ordered that the parties were joint owners and had to mutually agree on a sharing schedule.[40] If the parties failed to agree on a schedule, they would have to bring an application in a court with jurisdiction, the province’s superior trial court.[41]
Where do we go from here?
Right now, a party’s relationship with a pet plays no role in the court’s decision on ownership. It is time for that to change.
Fifty-seven percent of Canadian households own a pet.[42] Canadian courts are meant as a last resort for parties who are unable to agree.[43] The fact that our family courts are overwhelmingly busy should not prevent courts from hearing decisions on pet-ownership. Courts deciding pet-ownership should apply an evidenced-based analysis, along the lines of Justice Hoegg’s. Maybe it is time for courts to begin awarding shared pet-ownership.
FOOTNOTES
[1] Baker v. Harmina (2018 NLCA 15) at para. 52, <http://canlii.ca/t/hqtpk>.
[2] Harmina at para. 7.
[3] Harmina at para. 20.
[4] Harmina at para. 1.
[5] Harmina at paras. 2 and 53.
[6] Harmina at para. 1.
[7] Harmina at para. 7.
[8] Harmina at para. 8.
[9] Harmina at para. 27.
[10] Harmina at para. 24.
[11] Harmina at paras. 6 and 37.
[12] Harmina at paras. 26 and 31.
[13] Harmina at para. 30.
[14] Harmina at para. 31.
[15] Harmina at para. 33.
[16] Harmina at para. 32.
[17] Harmina at para. 32.
[18] Harmina at para 22.
[19] Harmina at para. 4.
[20] Harmina at para. 21.
[21] Harmina at para. 21.
[22] Harmina at para. 22.
[23] Harmina at para. 24.
[24] Harmina at paras. 19 and 24.
[25] Harmina at para. 27.
[26] Harmina at para. 48.
[27] Harmina at para. 59.
[28] Harmina at para. 59.
[29] Harmina at paras. 50 to 52.
[30] Harmina at para. 49.
[31] Harmina at paras. 54 and 58.
[32] Harmina at para. 52.
[33] Harmina at paras. 52 and 53.
[34] Harmina at para. 53.
[35] Harmina at para. 56.
[36] Harmina at para. 53.
[37] Harmina at para. 53.
[38] Harmina at para. 53.
[39] Harmina at para. 53.
[40] Harmina at paras. 56 and 58.
[41] Harmina at para. 58.
[42] “Consumer Corner: Canadian Pet Market Outlook, 2018”, Alberta Agriculture and Forestry, July 4, 2014, <https://www1.agric.gov.ab.ca/$department/deptdocs.nsf/all/sis14914>.
[43] Harmina at para. 59.