“Who Gets the Dog?” A Family Law Approach
Abstract
When families break down, the question of “who gets the dog” is often of fundamental importance to the parties. However, Canadian courts have historically regarded companion animals as mere property and ignored the emotional bonds between family members and their companion animals. More recently, courts have taken a number of approaches, ranging from a traditional property analysis, to one that considers the animal’s best interests. Given these developments, the author believes the time is ripe for the law to adopt a more consistent and compassionate approach to the question of companion animal ownership—one that reflects modern-day understandings of the relationships between humans and nonhuman companion animals.
In this article, the author contends that Canadian courts should dispense with the traditional property analysis to determining ownership of a companion animal, where purchaser equals owner regardless of the dynamics in the home, and instead adopt a relational approach, which looks to the roles and responsibilities of the parties in relation to their animal, regardless of legal ownership or title.
To explain the property-based approach, the author considers Henderson v Henderson and Ireland v Ireland. These decisions illustrate how the traditional approach to determining companion animal ownership ignores the meaningful relationships between humans and their companions by focusing solely on the question of legal title. To illustrate an alternative approach, the author relies on Rogers v Rogers, which considered the interests of the dog in question. The author then considers the recent appellate decision Baker v Harmina, which set out a more nuanced analysis, and suggests that the relational approach to determining companion animal ownership may be gaining momentum in Canadian courts. This approach, seemingly at play in both the majority and dissenting reasons in Baker v Harmina, explores the relationship between the parties and the animal to determine “who gets the dog”, rather than only considering who purchased the animal.
The author concludes by noting that while there is no easy answer to who gets the dog in family disputes, the relational approach—similar to the analysis that already underlies much of family law provides the best means for court decisions to reflect the lived realities of the parties with respect to companion animals. The author suggests that the relational approach, in addition to providing some consistency in an otherwise unpredictable area of law, will help alleviate some of the perceived injustices that surround treating companion animals as mere property by ensuring that relationships between human parties and their companion animals are able to continue beyond family breakdown.
