Articles / Blogs

Mediation: A Solution to Animal Law Disputes

Litigation is often considered by the public as the only option that a legal dispute can be resolved. Although it can produce enforceable court orders, provide high monetary awards, and ensure public accountability, going to court can be costly, time consuming, unpredictable, and sometimes even too expensive! Gartner & Associates offer mediation as a method for resolving animal-related legal disputes.

Mediation is the process by which an independent third-party facilitates the discussion regarding a dispute between two or more parties. Also, a legal representative can take on the role of Mediator to facilitate a settlement. The reason mediation is so attractive is because it is inexpensive in comparison to going to court, it is less risky, can be less stressful, and it can provide much faster and satisfying resolutions. In fact, Gartner & Associates has successfully mediated numerous animal law related disputes, some in just a few hours! Not only can mediation save time and money, but a settlement can be mediated in a private forum. There are many areas of animal law that mediation can be utilized to resolve an animal-related dispute. Gartner & Associates represents clients using a mediated approach in many service areas including: pet custody/ownership disputes, veterinarian malpractice incidents, alleged dog biting cases, breeder disputes, denial of insurance claims, boarding/groomer disputes, pet condominium disputes, equine law matters, and more.

There are several reasons mediation is an attractive avenue for resolving animal-related disputes. Firstly, in most situations, animal law disputes may bring about an emotional concern for parties to the dispute. Mediation allows for both the mediator and representatives to help the parties in dispute understand each others’ emotions and to help them empathize what they are both going through. This level of empathy is rarely seen in trial and why it makes mediation such an efficient alternative to resolving animal-law disputes. Secondly, in many situations, the monetary court awards provided in animal-law related issues are not worth the higher costs associated with absorbent litigation and high court fees.

A third reason that mediation is a preferred method to resolving animal-related disputes is that the current regime of the law considers our beloved pets as personal property. As such, a court decision rendered may be unfavourable as litigation is risky and does not guarantee success. In other words, a judge may not recognize your animal’s best interest or display empathy or compassion for your situation. On the other hand, participating in a negotiation process is more flexible and using mediation can result in a more successful, and satisfying outcome for all parties involved, especially in custody cases.

Not only is mediation useful, even the litigation system has implemented mandatory mediation. It is a mandatory process according to Rule 24.1 of the Ontario Rules of Civil procedure which dictates that there must be a mandatory mediation for civil and non-family action cases.[1] This rule applies in Toronto, Ottawa, and Windsor.  In some animal law disputes, mediation will be necessary before litigation and a party can wait a long time before court. As such, it is important to contact a lawyer who is experienced and knowledgeable in the area of law where your legal dispute.

The team at Gartner & Associates, as trained mediators with skills in negotiation, and as animal lovers, can help you with your mediation by providing representation and support during the entire process. To find out more about mediation as an alternative dispute resolution method and how it can help you with your animal-law-related dispute, the lawyers and staff at Gartner & Associates can answer your questions. They can be reached at (416) 836-9971 or you can send your animal-related inquiry via email to reception@animallawyers.ca and book a consultation. With many years of experience and success specializing in mediation, Gartner & Associates has successfully represented many clients in their times of need. We understand that animal-related disputes can be difficult and we are here to help you!

 

[1] Ontario Ministry of the Attorney General. “Public Information Notice – Ontario Mandatory Mediation Program.” Public Information Notice – Ontario Mandatory Mediation Program – Ministry of the Attorney General, 2017, www.attorneygeneral.jus.gov.on.ca/english/courts/manmed/notice.php.

 

Pet Condominium Law and Your Legal Rights

Animal companions are an integral part of many people’s families, even that of apartment tenants and condominium residents. This may create tension between the pet’s owners (“guardians”) and their respective landlords and condo corporations. In Ontario, no-pet clauses in apartment buildings are not enforceable, however, the strict regulations prohibiting pets in condo units may be enforceable. Most if not all condo laws provide against the ability for their unit holders to have animals or pets. The main questions that are often asked are whether these condo corps can effectively ban pets and if they can require their unit holders to remove their pets if they already have them.[i] This can be devastating for many families.

Condo residents may look to the declaration, which is the main document for the condo, as well as their by-laws, rules, and regulations to review their restrictions on having pets or animal companions. Some rules against the ability to have pets in condo units include that of pet restrictions on types of animals, the number of animals, as well as the size of animals. These, as per the declaration, apply to all unit holders in the same fashion. In rare instances, condominium corporations entirely ban animals from the building. However, in recent years, the courts have considered entire bans on animals unreasonable in some situations.

In fact, the Human Rights Code will allow exceptions to be made under the condo’s rules and regulations as it relates to accommodations for unit holders with disabilities requiring the use of service animals. A unit holder may be permitted to have a seeing-eye dog in their unit despite the condo corporation’s restrictions regarding the size of an animal. In addition, unit holders requiring the use of seizure response dogs, dogs capable of alerting others immediately after a person begins having an epileptic seizure, may be permitted to have these dogs despite strict regulations on noise requirements.

Obtaining a lawyer with experience in this specialization may help grant you the ability to continue having your animal companion(s) in your condo unit! If a condo is seeking to remove a pet, the lawyers and mediators at Gartner & Associates have experience in animal-related disputes with condominium corporations and may assist you in keeping your pet at home. In recent years, mediation has been an option for resolving pet and condominium disputes. To find out more about pet ownership and condominiums, and the law surrounding this area, you can contact the lawyers and mediators at Gartner & Associates. They can be reached at 416-849-0944.

[i] Duggan, Tim. “Reasonable Doubt: Can Condo Corporations Ban or Restrict Pets?” NOW Magazine, NOW Magazine, 19 Dec. 2017, nowtoronto.com/news/reasonable-doubt-can-condo-corporations-ban-or-restrict-pets/.

Dog Bites and the Dog Owners’ Liability Act

Dog bites and Dangerous Dog Appeals

By Suzana Gartner & Daniel Fin

For thousands of years, dogs have been considered as man’s best friend as they provide lots of affection and love for their families. Although they are a large source of happiness for many, they can be a huge responsibility. In fact, sometimes they can cause a lot of frustration for their legal human owners/guardians when they bite another human or domestic animal. In some extreme cases, dogs have caused permanent physical and emotional damage and even caused the death of another domestic animal.

The best strategy is to pre-emptively prevent your dog from biting in the first place by understanding their behaviour and triggers. However, sometimes this is not possible. In Ontario, dog bites are governed by the Dog Owners’ Liability Act (“DOLA”). It dictates that when a dog attacks or bites another person or domestic animal, the owner of the biting-dog is strictly liable. A strict liability offence does not consider the fault of the individual, in this case the dog-owner. In other words, it does not matter whether the owner was negligent or even whether the owner had knowledge of their dog’s predisposition to biting. A dog owner in Ontario is held liable under DOLA if their dog bites or attacks another person or domestic animal.

When a dog bites, there is a possibility of two concurrent proceedings against the dog-owner. One may arise by the municipality (city). Another may arise by the alleged victim of the bite or attack. There is the possibility that these legal suits result in dangerous dog orders which specify mandatory conditions to be followed by the owner of the dog who allegedly bit the victim or the victim’s domestic animal. A typical condition that may be required from a dangerous dog order is a mandatory muzzle requirement which specifies that while the dog is in public or anywhere off the owner’s property, the dog must wear a muzzle. In some cases, the alleged biting or attacking-dog is seized pending the completion of proceedings and kept from their loving family. Also, in some situations, particularly against specific dog breeds, the city may order the destruction of the biting-dog which results in the dog being put down.

It is advisable that a dog owner whose dog has bit or attacked another person or domestic animal contact a lawyer who specializes in dog bite cases. Hiring an animal lawyer with experience in this field can improve the chances of settling out of court without the need of resorting to litigation if the case can settle out of court. The team at Gartner & Associates Animal Law strongly oppose breed specific legislation and destruction orders and has successfully defended many dog owners and their dogs against seizure and from destruction orders under the DOLA.

The DOLA is strict in terms of dog owner responsibility. It specifies that dog owners must take reasonable precautions to prevent their dog from biting or attacking other individuals or domestic animals. Some precautions involve the following: fencing yards, leashing dogs while outside the property, and putting their dog through training classes. Under the DOLA, if it is determined that the dog owner did not exercise reasonable precautions, they will likely be held liable and be required to pay large fines by the city and pay the opposing side in monetary damages. Although a strict liability offence, contributory negligence plays a role the victim may have very well contributed to their own injuries by acting in an unreasonable manner. The courts will recognize unreasonable behaviour on behalf of an alleged victim as a mitigating factor when assessing damages to be paid by the alleged attacking-dog’s owner. If a dog owner believes that the alleged victim was acting unreasonable, it is advisable for them to contact an animal lawyer who specializes in dog bite cases. In some situations, it is impossible to determine that a dog bit the victim when there were two or more dogs involved. Contacting a lawyer who specializes in animal law and specializes in dog bite cases maximizes protection for dog owners and their dogs. The lawyers at Gartner & Associates have successfully rescinded many dangerous dog orders under the DOLA.

To find out more about dog bites and learn more about the law surrounding them, you can contact Gartner & Associates can answer your legal questions. They can be reached at (416) 836-9971 or by email at reception@animallawyers.ca. With many years of experience specializing in dog bites, the staff at Gartner & Associates have successfully represented many clients whose dogs have been accused of biting under the DOLA.

Who Gets the Dog or Cat in a Divorce?

Who Gets the Dog or Cat in a Divorce?

Dog Law Custody Ownership

By Suzana Gartner & Daniel Fin

Traditionally, courts have relied on an ownership model that views animals as nothing more than personal property. This ancient view considers individuals who purchase animal companions as having sole possession over them. With this outdated model still in force, there are no concrete laws that support the idea of shared-custody for pets in Canada. Pets are members of the family and are viewed akin to children to many. Animals have personalities, have the capacity to feel emotion and think. They are social creatures that can have social connections and understand loneliness. They form attachments with their “parents” (human guardians). Yet, the courts restrict the application of pet custody issues to an ancient doctrine that limits pets to nothing more than a piece of property, just like your couch. In a national study, it was estimated that 61% of Canadians have pets at home while 44% of the millennial population view caring for animals as practice for raising human children.[1] This sentiment demonstrates the societal view that pets are important in Canadian’s lives. Even with this shift to understanding that pets are not personal property but rather family, the courts continue to adopt and apply ancient legal principles that are long-overdue for change.

If couples split, where does the dog or cat go? To many couples, their animal companions are their best friends and akin to their children. Typically, as mentioned above, the animal will go to the individual who purchased the animal and not the one who cares for them. In the case of Henderson v Henderson,[2] the ruling judge noted that it was a waste of time and resources to argue pet-custody disputes. However, in a more recent case, Baker v Harmina,[3] Canadians can begin to see a change in the judiciary’s conception of pet ownership and it may affect pet custody disputes with splitting couples. Although the traditional model was affirmed in this case, a dissenting opinion demonstrated a shift into understanding the cultural and societal perceptions of family pets.

In Baker, David Baker and Kelsey Harmina owned a dog named Mya. Baker purchased Mya when the couple first brought her into their home however Baker’s work schedule took him away from home most of the time. Harmina cared for the dog on a full-time basis. Harmina argued that Baker’s busy work schedule gave her the impression that she had joint ownership over Mya as she was her predominant caregiver. In the majority decision, the court relied on the ancient personal property doctrine that animals are nothing more than personal property and that Baker was the sole owner of Mya as he purchased her. The court decided that Harmina’s emotional attachment to Mya was not a factor to be weighed in favor of her possessory rights over the dog. The ultimate decision, clearly not taking the animal’s best interest into account, resulted in Mya being owned solely by Baker as he was the party who couple prove that he had purchased her.

The dissenting Justice Lois Hoegg demonstrates an understanding that animals are viewed as children and how ownership should not merely be determined based on the purchase of the pet. “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”, said Peter Sankoff.[4] In his interview with CTV, he stated that “deciding that someone owns the dog because they are the ones that made the purchase on paper should not be the deciding factor of ownership since a lot of thought goes behind the purchase of an animal – together.”1 Often, this is a joint decision.

At Gartner & Associates, we have successfully helped clients resolve their pet custody and ownership disputes to gain custody and access to their beloved pets. We believe that pets are not something you just own like a chair or table. Pets are valued members of the family and should be considered as such when negotiating terms of access and custody. We have assisted clients in creating fair custody arrangements, crafting solutions, and helping parties to draft pet co-ownership agreements using a mediated approach. Gartner & Associates consider the best interests of the animal when we advise on shared ownership arrangements. We try to avoid litigation by using creative solutions through our Alternative Dispute Resolution (ADR) approach. Our unique tailored approach and expertise in animal law allows us to advise clients on pet custody arrangements. We help parties create pre-nuptial agreements that specify the terms that consider the animals’ best interests so that conflict can be avoided at a later time. That being said, in some cases, shared custody arrangements are not advisable. With these types of cases, the staff at Gartner & Associates can help clients gain full ownership to their beloved pets.

Pets are family. We can help you put your companion animal’s best interests first. We have dealt with pet custody arrangements for client’s companions including: cats, dogs, horses, parrots, and other beloved family members. For more information and if you are experiencing difficulties with an ex-partner, please contact our firm and we can schedule an appointment and advise you.

 

[1] MacLeod, Meredith. “Divorcing Your Dog: Ruling Opens Door to New View of Pets in Splits.” CTVNews, 30 Apr. 2018, www.ctvnews.ca/lifestyle/divorcing-your-dog-ruling-opens-door-to-new-view-of-pets-in-splits-1.3908212.

[2] Henderson v Henderson, 2016 SKQB 282.

[3] Baker v Harmina, 2018 NLCA 15.

[4] Sankoff, Peter, and Jodi Lazare. “What the Law Doesn’t Understand: My Dog Is Not a Couch.” The Globe and Mail, 22 Mar. 2018, www.theglobeandmail.com/opinion/article-what-the-law-doesnt-understand-my-dog-is-not-a-couch/.

Horse Shoes & Fine Prints

By David Samuels & Daniel Fin

Horses play an interesting role in Canadian society. Viewed as vehicles to some, athletes to others, and pets to many, equine law – although a niche – contains many specifics which overlap in other areas of the law (namely Contract Law) and is much more complex than it appears. Disputes may arise within a purchase agreement during a sale. Disputes may arise when an athlete is injured, or even killed, while riding. Disputes may even arise within boarding and leasing agreements. Gartner & Associates have successfully handled a variety of the contractual equine law disputes mentioned above, as well as many others.

Before the common law developed to what it is today, agreements were settled based on the parties’ words and handshakes. Written contractual agreements are now often required, and when not, strongly advised. If you are thinking of purchasing or selling a horse, it is important to remember that a written purchase and sale agreement may be necessary! The lawyers at Gartner & Associates have successfully assisted many soon-to-be-horse owners as well as current horse owners with negotiating the transaction with their respective buyer or seller. Our lawyers helped outline the identity of the horses, agree to a purchase price, come to an agreement with the terms of the sale, establish warranties, determine the time, and method of delivery, as well as develop general purchase contracts to protect and keep every party involved happy.

In addition to agreements of purchase and sale, the lawyers at Gartner & Associates have assisted many clients with boarding and leasing agreements. Remember, it is important to contact a lawyer who is experienced and knowledgeable in the field. It is even better to contact a lawyer who is also passionate in the field. The professionals at Gartner & Associates, as horse enthusiasts, can help you with your breeding contracts, boarding agreements, contract disputes, custody issues, insurance coverage disputes, liability releases, negligence matters, professional horse riding liability, and much more! The farrier to the horse is the lawyer to the contract; when the former takes care of the latter, the ride will be smooth!

Answered: What is Animal Law?

What is Animal Law?

The question, “What is animal law?” has become increasingly popular, both in the pet-owner and legal worlds. Inquirers are often surprised to find that this area has been on the rise for years. With approximately one in every two households in North America sharing their home with a cat or dog, this development comes as no surprise.

In a nutshell, animal law deals with how the law relates to, or impacts, animals and their guardians. Although animal law cases typically involve domesticated animals, such as cats and dogs, this area can apply to other species of animals, ranging from birds to lizards to horses. In fact, there is an entire sub-category of animal law for horses called Equine law! Animal law encompasses companion animals, as well as wildlife, animals used for entertainment, those raised for food and research, and animals used in professional settings such as the horse racing industry.

One of the unique things about animal law is that it combines several different legal areas and deals with issues that can affect even the most diligent pet guardian. Examples of when an owner may need to retain a lawyer include the following situations: alleged dog bite incidents, veterinary negligence claims, determining what will happen to a pet upon the death of their owner, establishing pets in wills, insurance claims, breed discrimination, condominium disputes, and so much more.

An example of breed discrimination is the Pit Bull Ban, which came into effect in Ontario in 2005. The implementation of this law means that if a dog in Ontario is found to be a “pit bull” or has “substantially similar” characteristics, unless the owner can prove otherwise, the dog can be relocated out of the province, or worse, euthanized. In cases like these, a lawyer can assist in contesting the “breed” determination that has been made and/or fight to ensure that the dog is not seized.

Another situation in which pet guardians may require legal assistance is in pet custody disputes. According to an American study, more than fifty percent of pet parents would prefer the company of their pet to that of a human if they were stranded on a desert island. In fact, a San Diego court case gained fame in 2000, due to the two-year custody battle and over $100,000.00 in legal fees spent by a divorcing couple over a Pointer Greyhound dog named Gigi. These custody disputes are not restricted to marriage. Courts have dealt with pet custody cases between family members, former partners, boyfriends and girlfriends and even roommates. In Canada, pet custody disputes typically arise when one guardian claims the other gave the pet to them as a gift. Although Canadian courts were originally dismissive of such claims, the tides are beginning to change as more pet-related cases are brought forward. In these cases, it is important to have legal representation with lawyers with expertise in animal law to properly assist in the custody determinations of people’s beloved animals.

Although pets are still treated as property in the eyes of the law, there is a consensus amongst both animal advocates and legal practitioners that this needs to change. To many guardians, pets are as important as children and as society’s values change, animals are increasingly being viewed as sentient. It is imperative that legal guardians are made aware of their legal rights and obligations associated with pet ownership to ensure the well being of their companions.

Gartner & Associates has specialized knowledge to assist you with your animal law concern. You can schedule a consultation to discuss your legal concern with our legal team.

Man’s Best Friends Can Sometimes Cause Harm to Others: Dog Bites in Ontario.

By Suzana Gartner and Daniel Fin

Dogs have always been a source of love and affection for their families. They have been man’s best friend for thousands of years! Dogs can be trained to perform and obey certain commands and they will always love you more than they love themselves. However sometimes, taking care of a dog becomes a huge responsibility and dog ownership can be a source of frustration as the law can require their human guardians to pay large fines in consequence to their actions when their dog has bitten another domestic animal or human.

Dogs come in a range of different shapes and sizes. Usually larger dogs can cause larger bites and result in more profound consequences. Dogs can seriously injure an individual or another domestic animal with just a single chomp! In some extreme cases, dogs have caused permanent physical and emotional injuries and even caused the death of an individual or an animal.

Dogs bite for a variety of reasons and it is up to us to understand why they bite and when they are likely to bite to avoid being on the wrong end of the teeth! There are many reasons why a dog may bite. A bite may be caused by fear or fear aggression. It may be caused by the dog being placed in a stressful situation. A dog may bite to protect his home or human guardian, or because he/she is sick or not feeling well, or simply because someone touched a sensitive part of their body. Further, dogs may bite accidentally during play, or when they get overly excited. There are many circumstances for dog bites to occur and it is in our best interest to understand the warning signs and prevent certain behavior so that a dog bite does not occur at all.

The best way is through bite inhibition training! Dogs can bite! It is a fact of life. Dogs perceive the world primarily through their nose and mouth and, naturally, things like hands or arms can come into contact with your dog’s teeth. Training a dog not to bite is like training a cat not to purr. It is a natural part of their existence. Instead of preventing dogs from biting, it is better to train your dog to manage their jaw strength. This training is called bite inhibition.

Bite inhibition training is a form of conditioning where one trains their puppy to understand the maximum amount of pressure they are allowed to exert on a human or other domestic animal. It begins by encouraging mouthing but discouraging strong and painful nips. As the nipping becomes less strong and less painful, the owner should then discourage the “strongest” of the nips that the puppy is still exerting on them. This process is repeated until the puppy’s nips are gentle. Then it is a matter of reducing mouthing. This process will help avoid serious dog bites in the future when the dog is fully grown (especially if it is a larger breed).

Other ways to prevent your dog from biting is through proper socialization and dog training. The more positive the dog’s experiences are with other people and other animals at a young age, the less likely it is that the dog will bite or attack when he/she becomes an adult. However, sometimes our efforts are simply not enough and a bite can occur due to a random event.

What happens if your dog bites or attacks another person or domestic animal? The law in Ontario surrounding dog bites is outlined in the Dog Owners’ Liability Act (hereinafter the “DOLA”).

The DOLA is the legislation that governs responsible dog ownership and the law of dog bites in Ontario. It specifies that whenever a dog bites or attacks another person or domestic animal, the dog owner is strictly liable. With strict liability offences, it matters not the fault of the individual responsible. It does not matter whether it was an accident or that the owner was not negligent. Further, it does not even matter whether the owner knew their dog had a predisposition to biting. It only matters that the act occurred. It matters that the dog of the owner bit or attacked another person or domestic animal for the owner to be liable for damages resulting from the bite or attack.

What should a dog owner do if their dog has bit or attacked another person or domestic animal? It is advisable to try to settle cases without going to trial and hiring a lawyer who specializes in dog bite cases can improve the chances of settling out of court without moving through litigation. Unfortunately, some dog bite cases end up with the seizure of a beloved dog and ultimately with a destruction order. The lawyers at Gartner & Associates are adamantly opposed to breed specific legislation and destruction orders. Further, the lawyers at Gartner & Associates have successfully defended many dog owners and their dogs against seizure and from destruction orders under the DOLA.

The DOLA is strict when it comes to the ownership of dogs and dog owner’s responsibilities. It specifies that dog owners must take reasonable precautions to prevent dog bites or attacks. These precautions may involve fencing yards, keeping the dog on leash when outside the property and understanding how the dog reacts to certain situations. If it is proven that the dog owner did not exercise reasonable precautions, he/she will likely be liable and pay the opposing side damages.

Contributory negligence also plays a vital role. If a dog has been accused of biting a person or domestic animal, it does not necessarily mean the owner is fully responsible for the damages that result from the injuries. The victim may have very well contributed to their own injuries by acting in an unreasonable manner. The DOLA fully recognizes this as a mitigating factor when assessing damages. It is usually advisable for the dog owner to seek legal advice when they believe the victim was acting unreasonably leading up to the bite or attack. Sometimes it is not possible to prove that a dog bit the victim when there were two or more dogs involved in the situation leading up to the bite. Contact a lawyer who specializes in animal law and dog bites to receive the best protection for yourself and your dog.

To find out more about dog bites and gain knowledge of the law surrounding them, the lawyers at Gartner & Associates can answer your legal questions. They can be reached at (416) 836-9971 or by email at reception@animallawyers.ca. With many years of experience specializing in dog bites, the staff at Gartner & Associates have successfully represented many clients whose dogs have been accused of biting under the DOLA.

Citations
“Why Do Dogs Bite?” AVMA, www.avma.org/public/Pages/Why-do-dogs-bite.aspx.

Dunbar, Ian. “Teaching Bite Inhibition.” Dog Star Daily, 26 Apr. 2012, www.dogstardaily.com/training/teaching-bite-inhibition.

Dog Owners’ Liability Act, R.S.O. 1990, c. D. 16.

Equine Law and a Shift to Sentientism

By Suzana Gartner & Daniel Fin

Horses can be viewed in today’s society as many things ranging from personal pets, to vehicles, and also as athletes competing for first-place prizes. This is what makes Equine Law so particularly interesting in Canada. Disputes may arise resulting from injuries to a rider and/or their horse. Disputes may also arise within horse sale and purchase agreements, horse boarding and leasing agreements, as well as horse breeding and breeder agreements. Problems may also arise when horse racing leads to injuries or even death. Gartner & Associates have successfully handled a variety of disputes just like the ones mentioned above, however, with all the potential disputes that have arisen, there is one thing in common that is problematic: horses, as all animals (outside of Quebec), are viewed as personal property. This creates an issue when seeking appropriate remedies for horses who have been negligently cared for and neglected.

Horses, who are considered as personal property in legal terms, presently do not have legal standing to enforce their rights as sentient beings. So, what happens when a horse is neglected and suffers under the hands of their negligent owner? The owner is criminally charged but the horse is left alone without monetary remedies to cover the cost of treatment and care to relieve the negative effects of the negligent care. Fortunately, an Oregon court now has the opportunity to revolutionize animal law, help animals enforce their rights, and to allow for animals to seek and acquire appropriate remedies for their mishaps as victims.

In early May of 2018, the Washington County Circuit court filed a lawsuit for an 8-year-old horse by the name of Justice who is the very plaintiff against his former owner, Gwendoyln Vercher, who negligently left Justice out in the cold winter months without adequate amounts of food or shelter [1]. Justice, upon rescue, was found to be nearly 300 pounds underweight, infested with lice, and suffering from rain rot and severe frostbite. In severe pain, emaciated, and frail, Justice will now require extensive surgery and long-term specialized veterinary care.

The Oregon court responsible for the complaint of Vercher’s negligent care of Justice recognizes that “horses are intelligent animals with capacity for rich and emotional lives…” [2]. Oregon law also “recognizes animals as victims and that victims have a legal right to seek remedies from their abusers.” Justice, however, as an animal, does not have the same perks as individuals do and does not have legal standing to raise this claim. Generally speaking, standing refers to the legal right of a person or group to challenge conduct of another in a judicial setting. In other words, it is the ability of a person to sue another [3]. Persons usually include individual humans and include legal entities which are given the rights of a natural person which may include corporations and estates. Animals, however, do not have the status of persons and remain classified as property. This presently impedes animals like Justice from acquiring justice.

Generally, other than in Quebec after the passing of Bill-54, animals remain classified as, legally speaking, personal property. Justice’s fate, as well as many other neglected animals, will lie with the decision of this Oregon court to progress animal law to be more empathetic to the very creatures it is intended to protect and provide them with the remedies they deserve.

[1] “Groundbreaking Lawsuit Argues Animals Have the Right to Sue Their Abusers in Court.” Animal Legal Defense Fund, 1 May 2018, http://aldf.org/press-room/groundbreaking-lawsuit-argues-animals-right-sue-abusers-court/.

[2] Weiss, Debra Cassens. “Suit Argues Animals Have the Right to Sue Their Abusers.” ABA Journal, 1 May 2018, http://www.abajournal.com/news/article/suit_argues_animals_have_the_right_to_sue_their_abusers/

[3] Barron’s Canadian Law Dictionary, sub verbo “Standing”.

Pet Custody/Ownership Disputes: Who Gets the Dog When Couples Break Up?

Dog Law Custody OwnershipBy Suzana Gartner and Krista Staley

Pets are considered to be integral members of the family unit. They command many different roles in a family’s household including companionship or acting as substitute children. Animals have the capacity to uphold these different roles because, like humans, they have innate personalities, command the ability to think and feel, and they are able to experience a wide range of emotions. In fact, our beloved pets are social creatures; they crave social connection, can experience loneliness, and they form attachments with their human guardians. In a national survey, it was revealed that 61% of Canadians share their home with a pet, and 44% of millennials shared that caring for an animal is akin to ‘practice’ for one day raising children.[1] However, despite the fact that many Canadians view their animal as a family member, the courts do not reflect this way of thinking. In Canada, animals are considered personal property which means that your dog or cat has the same amount of rights as your personal property, such as your kitchen chair or television set. Sadly, your companion animal is granted limited to no rights in the eyes of the court.[2]

What happens when families or partners go through a change and the couple’s relationship ends? When two people separate or divorce, who has ownership of the animal you consider to be your family member, best friend or child? Traditionally, courts have continued to rely on an ownership model that views the individual who purchases the animal as having sole possession over that ‘property.’ Since animals are considered personal property, there is no current law that supports the idea of shared custody in Canada. In the case of Henderson v Henderson,[3] the court argued that pet custody cases were a waste of judicial resources and should be discouraged within our justice system. However, in a more recent case, Baker v Harmina,[4] we begin to see a shifting mindset with respect to the concept of pet ownership in the courts when considering different relationships. Although the traditional model of ownership is restored by the Court of Appeal of Newfoundland and Labrador, the decision made by the dissenting judge in this case is monumental for pet custody law.

The timeline in this case involves an ongoing dispute between a separated couple, David Baker and Kelsey Harmina, over the ownership of a dog named Mya, a cross between a Bernese Mountain Dog and a Poodle. Although Baker purchased Mya, his work took him out of province for 14 days out of every 21, where Harmina would take care of Mya on a full-time basis. Based on Baker’s work schedule, Harmina was under the impression that since she predominately cared for Mya, there was an agreement of joint ownership. However, the small claims judge ruled that Baker was the sole owner of Mya since his purchase of Mya demonstrated that he held the property interest. Harmina’s emotional attachment to Mya and care while Baker was away for work was not determinative of a personal property interest. Harmina appealed this decision to the Supreme Court Trial Division where a provincial Supreme Court judge found that the small claims judge had erred in his reliance on the traditional model of ownership and his omission of any consideration towards Harmina’s relationship with Mya. The appeal judge concluded that the parties had entered into a joint ownership of Mya. Baker then appealed that decision to the Court of Appeal of Newfoundland and Labrador where two of the three judges agreed that Baker was the sole owner of Mya since he was the one who initially purchased her.[5]

Although the ultimate decision can be argued to not be in the best interest of Mya, the dissenting judge, Justice Lois Hoegg, takes into consideration the interest of all parties by arguing for a shift away from the traditional model of pet ownership. In the view of Justice Hoegg, based on how society views household pets, ownership doesn’t just simply equate to the financial purchase of the animal.

Taking into account the strong emotional attachments humans create with their beloved companion animals, the concept of pet ownership should be viewed on a much broader scale. Considered to be integral family members, animals are more highly regarded versus the property status they are currently granted in law. Justice Hoegg is of the belief that when it comes to the custody and ownership of animals it’s not a burden on the justice system and should be placed with more importance than it currently is. When it comes to animal law, a shift in legal thinking is crucial to improve and enhance the way our laws view animal interests. This outcome can be compared to the cliché “we lost the battle but won the war” in that although this case restores the traditional model of ownership, it also introduces the notion of resistance to it. 

At Gartner & Associates Animal Law, we have successfully assisted clients in gaining custody and access to their beloved pets, working with the client to create fair custody arrangements, and drafting pet co-ownership agreements establishing claim and ownership of animals using a mediated approach. We consider the ‘best interests’ of the animals when we advise on shared ownership.

In order to avoid litigating disputes over legal ownership when couples split up and instead of having to proceed to court and allow a judge to make a decision solely based on proof of ownership, we work with our clients to come up with creative solutions through our ADR approach. Our unique tailored approach and expertise in animal law allows us to advise clients on pet custody arrangements and create pre-nuptial agreements that set out terms considering ‘the best interests’ of the animals and assist our clients to prevent future disputes from arising and ending up in the courts. On the other hand, in some situations, shared custody and access is not the best solution or even an option. In these cases, Gartner & Associates can assist clients obtain full ownership claim to their beloved pets by defending our client’s claim. Our companion animals are members of our families, it’s time we put their interests first. For more information and if you are experiencing a difficult situation with an ex-partner, please contact our firm and we can schedule an appointment and advise you: info@animallawyers.ca.

[1] CTV News, Divorcing your dog: Ruling opens door to new view of pets in splits, accessed from: https://www.ctvnews.ca/lifestyle/divorcing-your-dog-ruling-opens-door-to-new-view-of-pets-in-splits-1.3908212.

[2] Animal Justice, Episode 5: Who Gets the Dog? The Battle for Pet Custody, accessed from: https://www.animaljustice.ca/podcast/episode-5-who-gets-the-dog-the-battle-for-pet-custody.

[3] Henderson v Henderson, 2016 SKQB 2016.

[4] Baker v Harmina, 2018 NLCA 15.

[5] The Canadian Press, Who gets the dog? Former couple’s custody battle divides N.L’s top court, accessed from: https://www.thespec.com/news-story/8325029-who-gets-the-dog-former-couple-s-custody-battle-divides-n-l-s-top-court/.

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