Legal Ease, April 2

Who gets the dog if we break up?

By JAMES MORTON

When a couple splits up, they divide up their stuff.

Entire legal careers are based on the division of assets, and there is an extensive legislative and case law history about who gets what when couples split.

Obviously, it is better to divide up your stuff on the basis of mutual agreement.

But that can be hard, especially if there is sentimental attachment to items. This is especially so when dealing with pets.

People bond with their pets and losing them can be traumatic. As a Newfoundland judge recently said:

“Dogs are possessive of traits normally associated with people, like personality, affection, loyalty, intelligence, the ability to communicate and follow orders, and so on. As such, many people are bonded with their dogs and suffer great grief when they lose them. Accordingly, ‘who gets the dog?’ can pose particular difficulty for separating family members and for courts who come to the assistance of family members when they cannot agree on ‘who gets the dog.’”

That said, the law has generally held that pets are property, just the same legally as sofas, chairs and dinner plates.

As a result, when a separated couple argues over who gets the pets, the issue is one of property law. Who paid for the cat? Was the dog a Christmas present? Who is registered as the owner on the dog licence?

Property law can be complex, but it is a well-established and definite area of law.

A pet has an owner. The courts are well equipped to figure out who that owner is.

Judge White of the Newfoundland and Labrador Court of Appeal recently wrote:

“In the eyes of the law a dog is an item of personal property. That doesn’t mean dogs aren’t important. It means that when two people disagree about who should get a dog, the question is not who has the most affection for the dog or treats it better (so long as both parties treat the dog humanely.) The question is who owns it.”

This may seem harsh, but the alternatives are also a problem.

Suppose a court ordered that a dog, say, was to be shared by the separated couple. That would lead to issues of access and custody similar to those people have over children.

And child access and custody is a vastly expensive and litigious area of law. Re-creating that for pets would be highly problematic.

Now, all that said, if you split up with your partner, that doesn’t mean you cannot agree to share the dog or at least let both of you see the dog from time to time.

After all, the dog probably likes to be with both of you, and so you are doing the dog a favour.

James Morton is a lawyer practising in Nunavut with offices in Iqaluit. The comments here are intended as general legal information and not as specific legal advice.

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