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 With this outdated model still in force, there are no concrete laws that support the idea of shared-custody for pets in Canada.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. 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, 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, 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. 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.
 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.
 Henderson v Henderson, 2016 SKQB 282.
 Baker v Harmina, 2018 NLCA 15.
 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/.