"Who Gets the Dog?": A Family Law Approach.

• Date: 22 March 2020
• Author: Lazare, Jodi

Introduction

1. Companion Animals and Family Breakdown: Two Poles

   1. Ihe Traditional Property Approach

   2. The Relational Approach

2. Baker v Harmina: An Appellate Court Pronounces

3. Grounding a Relational Theory of Companion Animal Ownership in Family Law Conclusion

   Introduction

   As the saying goes, pets are family. People who live with companion animals--typically dogs and cats, but members of other species as well--consider them their kin. Some might even "claim that their relationship with their companion animals is their most meaningful one". (1) If dollars can be taken as a proxy for their importance, in 2017, Canadians spent $8.3 billion on companion animals, who live in more than 40% of households, nationally." Nevertheless, it is trite to say that the law does not grant companion animals the same elevated status. In Anglo-American legal systems, nonhuman animals are property--mere things, which may be disposed of according to their owners' wishes, (3) and the value of which rests solely in their market price. The property designation does not, however, prevent people from treating their companion animals as more than mere objects--providing them with expensive medical care, sharing their homes (and often their beds) with them, and loving them in a similar way as they do their children. But when families break down, and their members cannot agree on what should happen to companion animals in the family, the property status of companion animals becomes stark, (4) as does the "growing gulf between the self-understandings of average citizens and the rules of the law". (5)

   When it comes to the family dog in Canada, when owners part ways, (6) there are no custody determinations, no inquiries into the animal's best interests, and no doctrinal basis for ordering access, visitation, or financial support. Rather, in Canadian courts, who gets the dog is typically determined by a straightforward property analysis, where purchaser equals owner. With few exceptions, and as unpalatable as this reality may be to people who share their lives with canine companions, the law concerning the ownership and continued care of companion animals has not kept pace with societal attitudes toward them. (7) Rather, at present, "[f]amily law... devalues the human relationship with companion animals". (8) Thus, the determination of companion animal ownership upon family breakdown is an example of "a certain tension, when the law does not in fact answer the needs arising from major social changes or when social behavior and the sense of obligation generally felt towards legal norms significantly differs from the behavior required by law"--what Yehezkel Dror describes as a "lag" in the law. (9)

   This article makes a case for change. It argues that the law should catch up with social attitudes and behaviour toward companion animals. On the heels of the first reported Canadian appellate court decision to weigh in on companion animal ownership following a breakup, (10) this article sets out and argues in favour of an alternative model--one that looks beyond who purchased an animal and considers the relationship between dog and human and the way that that relationship may give rise to unforeseen obligations. This is not a radical proposition. In setting out its approach to determining ownership, this article endorses the reasoning of the Court of Appeal of Newfoundland and Labrador, some of which relied on an earlier decision of the Small Claims Court of Nova Scotia. (11)

   Part I of this article reviews some of the relevant case law, as it has developed in recent years. It sets out a spectrum of approaches that courts have adopted in adjudicating disputes over companion animal ownership (the "ownership spectrum"). (12) At one end lies the traditional property analysis, which equates ownership with the purchase of an animal and has little regard for the nuances of animal ownership or the relational aspect of animal companionship. This is the more frequent approach. At the other end lies what this article calls the "relational approach", which looks at factors other than who bought the animal and reflects the idea that ownership of a companion animal involves an ongoing and reciprocal relationship. Part II presents Baker v Harmina, the 2018 decision from the Court of Appeal of Newfoundland and Labrador (Baker NLCA), which saw the Court split over the appropriate approach, while nevertheless adopting relational reasoning throughout. Part III presents an argument for the relational approach. It draws on family law concepts, as well as relational legal theory, to suggest that the relational approach constitutes an appropriate incremental shift in the relevant common law principles. Indeed, given that domestication necessarily results in particular types of human-animal relationships, (13) relational theory is well-suited to addressing the legal treatment of companion animals. Moreover, the relational approach aligns with popular sentiment respecting companion animals.

   Literature on determining companion animal ownership is scant in Canada. (14) This article thus fills an important gap, given the growth of relevant scholarship in other jurisdictions, (15) and the attention that Canadian courts have given the subject. (16) Its objectives, however, are modest: to argue in favour of a particular approach to a specific, and increasingly common, (17) dispute--an

   approach that has already been endorsed by members of the Canadian judiciary. As such, this article does not weigh in on the popular debate in animal law (and, more specifically, animal rights) between the appropriate legal classification of nonhumans, (18) which, at times, does not acknowledge the "diverse forms of human-animal relations". (19) Moreover, it is worth being express about the fact that this article works within the current property paradigm governing animals, an approach that some scholars believe currently grounds "the most valuable successes for animals". (20) By advancing a practical and achievable solution to the growing problem of determining companion animal ownership on family breakdown, this article avoids common critiques about the desirability and benefits of the pursuit of animal rights. (21) But while it accepts the property paradigm, this article does not constitute an endorsement of the property designation of nonhuman animals. (22) Instead, this article aligns with Will Kymlicka's social recognition theory, according to which, law is already beginning to reflect social attitudes toward companion animals as community members (23) and as drivers of human relationships, (24) as well as Angela Fernandez's "quasi-approach" to nonhuman animals, which encompasses principles of both property and personhood. (25) In short, by encouraging the adoption of a theory that takes into account the central role of relationships in devising legal policy, (26) this article merely extends the application of the relational approach already at work in family law.

1. Companion Animals and Family Breakdown: Two Poles

   This part sets out the competing judicial approaches to adjudicating disputes between separating couples around ownership of the family dog. It does not canvass every decision on the subject; litigation surrounding ownership of companion animals seems to be on the rise in Canada and many of the relevant cases have been documented by others. (27) Instead, it focuses on examples at each end of the ownership spectrum, thus providing the necessary background to the 2018 Court of Appeal of Newfoundland and Labrador decision.

   1. The Traditional Property Approach

      Arguably the strongest rebuke of litigating companion animal ownership, the decision in Ireland v Ireland, from the Court of Queen's Bench for Saskatchewan, provides a clear example of the traditional property approach. (28) In Ireland, the divorcing parties were able to resolve all their issues respecting family property without recourse to the courts, save for possession of Kadi, a chocolate Labrador. Justice Zarzeczny presided over a one-day trial dealing with: "1. Whether the court should rule at all with respect to the ownership and possession of the dog, Kadi; [and] 2. If the court proceeds to do so, what arrangement or disposition of the ownership and possession of Kadi is appropriate?" (29) The former question, as framed by the justice, provides a telling indication of the reasoning to follow. Indeed, despite the acknowledgement that Kadi is family property, pursuant to the relevant statute, (30) Zarzeczny J did not take for granted that the latter question was one worthy of the court's time. Rather, under the heading "Inappropriate Issue to Try", he wrote:

      It is an unacceptable waste of these parties' financial resources, the time and abilities of their two very experienced and capable legal counsel and most importantly the public resource of this Court that a dispute of this kind should occupy all in a one-day trial.... It is demeaning for the court and legal counsel to have these parties call upon these legal and court resources because they are unable to settle, what most would agree, is an issue unworthy of this expenditure of time, money and public resources. Except in the most compelling of circumstances (perhaps to avoid a breach of the peace or potential harm that parties may do to one another), the court should not be engaged with interim applications or the trial of an issue such as this. (31) Justice Zarzeczny went on to state that "a dog is a dog" and that principles that might apply to "the determination of custody of children are completely inapplicable to the disposition of a pet as family property. Any temptation to draw parallels between the court's approach in this case to the principles applied to settle child custody disputes must be rejected." (32) Further, he warned that "[i]t is not the intention of the court, in making an adjudication upon this issue, to establish any principles...