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When Custody Goes To The Dogs

In a world where dogs are increasingly viewed as family members – or even as “furry children” – has the legal system caught up with the way society sees our four-legged friends? Let’s explore how dogs are treated when  relationships break down:

  1. Courts mostly regard pets as “property”, and therefore, solely determine which spouse has the better property title;
  2. Most courts have refused to make custody or access orders in relation to pets, and have further, merely found that the spouse with a better title should keep the pet;
  3. A few courts have made shared custody orders, found that pets are not merely property, and furthermore, considered the interests of the pet itself; and
  4. The court can make orders in regard to the division of a pet based on constructive trust principles (though in such a case, one party will end up with the pet, and the other will be simply liable for a monetary judgment for enrichment).
  5. Theoretically, an enrichment claim can be brought for time and expenses expended on a pet belonging to another person. However, this will be difficult (if not impossible) to establish where the party who alleges enrichment only paid normal day-to-day expenses on the pet.

The Dog as Property: Case Studies

In Warnica v. Gering, 2004 CanLII 50065 (ON SC) the court was asked to make a custody and access order over a pet dog, or alternatively, find a constructive trust interest vested in one of the cohabiting parties.The court found firstly that it lacked jurisdiction, as the Family Law Act did not apply, because the parties were not married, but furthermore, also commented as follows:

“[18] Assuming a lack of jurisdiction in the Family Court, I could either dismiss the application or direct that it be transferred to the “general” Superior Court.  In either event, the applicant could proceed there with a claim to have a declared interest in the dog, pursuant to the doctrines of constructive or resulting trust.  If a dog is property, then in that sense, it is no different than any other property; for example, a ring or a painting.

[19] Of course, any pet is somewhat different, in that it does not readily lend itself to physical division.  A pet could be sold, with the proceeds to be divided in accordance with any determination as to the parties’ respective interests therein; however, that is something that few would want.  Certainly it is something that no one wants here.  A pet could be shared, as happened in the case of Rogers v. Rogers.  In my view that would be akin to a custody access/order.  Whether in the Family Court or otherwise, I do not believe that any court should be in the business of making custody orders for pets, disguised or otherwise.  To the extent that any of my colleagues may feel otherwise, I respectfully disagree.  Obviously, I acknowledge that pets are of great importance to human beings.  Strong bonds develop between them and the human beings that look after them.  To some people, the relationship with their pets takes on a significance exceeding that of any other.  They go to extraordinary lengths to preserve that relationship; even at a cost that some would say is disproportionate.  Some may consider them to be children; however, they are not children.”

The court went on to state that whoever took care of or paid expenses for the dog was irrelevant to the issue of ownership:

“It would appear as if the applicant’s involvement with the dog was totally dependent upon his relationship with the respondent.  The applicant may have spent money for such things as dog food and the like and he may have spent time caring for the dog.  I do not consider that to be relevant to who owns the dog.”   (para 28).

When this case went to appeal, The Court of Appeal affirmed the judgment in Warnica v. Gering, 2005 CanLII 30838 (ON CA) and stated:

“[5] In his reasons, the judge alluded to paragraph 16 (12) (c) (iv) of the Family Rules, which allows the Family Court to dismiss or suspend a case because “the case is a waste of time, a nuisance or an abuse of the court’s process.”  While he did not rely on that rule, his reasons make clear that he regarded the case as a waste of the Family Court’s time.

[6] We agree and on the basis of the trial judge’s findings we would dismiss the claim under rule 16 (12) (c) (iv) of the Family Rules.  Given the unusual nature of this claim and the material before him, the case conference judge was entitled to conclude that the claim would likely fail both on jurisdiction and on the merits, and that in view of the pressing workload of the Family Court the case did not warrant a full trial.”

This passage seems to indicate that regardless of the jurisdictional issue, the Court of Appeal was of the opinion that joint custody could not be awarded over a dog, and furthermore, the constructive trust claim could not succeed on the merits.

The recent decision in Kitchen v. MacDonald 2012 CarswellBC 119 relied on the above case in finding the court did not have jurisdiction to make a custody or access order with respect to a dog. The judgment in Gardiner-Simpson v. Cross, 2008 NSSM 78 (CanLII) likewise stated that a dog cannot be split between parties, and instead, the spouse with the “better title” is entitled to retain the dog:

“[3] The love that humans can develop for their pets is no trivial matter, and the loss of a pet can be as heartbreaking as the loss of any loved one.

[4] Emotion notwithstanding, the law continues to regard animals as personal property.  There are no special laws governing pet ownership that would compare to the way that children and their care are treated by statutes such as the Custody and Maintenance Act or the Divorce Act.   Obviously there are laws that prohibit cruelty to animals, but there are no laws that dictate that an animal should be raised by the person who loves it more or would provide a better home environment.

[5] As such, slightly distasteful as it may be in the case of two loving and devoted pet owners, I must consider which one has the better property claim.

[6] The worst result of all would be a conclusion that the dog is joint property.

[7] Jointly owned property presents a peculiar problem for the law.  In the case of land, the Partition Act may be used to force jointly owned real estate to be divided or, if division is not practical, sold.

[8] In matrimonial cases, parties often agree to sell jointly owned assets (whether realty or personalty) and split the proceeds.  The problem would take on a Solomonic quality, where splitting the asset (be it a dog or a child) destroys the thing for both of them.  Selling the dog to an outsider would only double the pain.

[9] Where there is a desire not to allow the asset out of the family, matrimonial parties will often hold a private auction or bidding war and the person willing to pay the most will acquire the asset, paying half the highest bid value to the other.  This may be fair in the case of financial assets, but not in the case of something of intangible value.

[10] None of these mechanisms would do any justice in the situation before me.  As such, the only practical and humane thing is to do as I propose to do and attempt a principled analysis of the legal ownership.

[11] As these reasons will explain, I have concluded that the Defendant has the better claim to legal ownership, and in the result the claim will be dismissed.”

So too, in Hawes v. Redmond, 2013 NSSM 57 (CanLII) at para 26, the court stated:

“I have no doubt that the dog currently has a good home with Dr. Hawes and her family, but that is not the point.  This case is not about the best interest of the dog; it is about who has the better claim to legal ownership.  The analysis is no different than it would be if we were talking about a bicycle.”

Likewise, the judgment in Thompson v. Thompson, 2005 BCSC 1604 (CanLII) held that the party in whose care and possession the dog is, is not a relevant factor in determining ownership:

“Mr. Thompson argued that the learned trial judge erred by not giving weight to the uncontested fact that the dog has been in his care and control since the parties separated.  Mr. Thompson argued that possession connotes ownership, and since he possessed Charlie he must own him as well.  It is true that the learned trial judge’s Reasons did not touch on that argument.  It is also true that a trial judge is not obliged to expressly write on every issue and argument a party may make in the course of a proceeding.  This is especially so when a given argument is obviously wrong.  Such is the case with Mr. Thompson’s argument that his possession of the dog equals ownership of the dog.  The learned trial judge found as a fact that Mrs. Thompson’s version of events was true – ergo Charlie was a birthday gift to her.  That made him her property.  Mr. Thompson’s refusal to give him over after the separation no more made him Mr. Thompson’s dog than does a thief’s refusal to give up the loot make that loot his own property.” (para 25).

Another example of where a court refused to  make an order sharing access was Goldalmer v. Goldalmer, 1990 CanLII 162 (BC SC) where the court stated “Finally, the evidence revealed that the family dog was given to Mrs. Goldalmer by a friend primarily for her enjoyment. Both parties have grown attached to the dog.  The dog cannot be divided equally.  There is enough animosity that the parties cannot agree to any type of sharing arrangement.  In these circumstances the dog should remain with Mrs. Goldalmer.”

On the aforementioned approach, to put it simply, a dog is just property. Thus, in Ireland v. Ireland, 2010 SKQB 454 the court stated:

“[12] It must be stated that, as both counsel acknowledged, a dog is a dog. Any application of principles that the court might normally 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.

[13] It is not the intention of the court, in making an adjudication upon this issue, to establish any principles at all for fear that by doing so the court may be seen to invite future applications or trials to deal with disputed claims to family pets as property.”

The court’s order emphasized the property approach to animals by terminating an interim order which had permitted shared possession of the divorcing couple’s dog, Kadi,  awarding full ownership of Kadi to one party, and ordering that party to pay the other $350, half of Kadi’s original purchase price. In other words, rather than permit joint custody of the dog, it required one spouse to pay the other for their interest in the dog.

The Dog as More than Property: Case Studies

A different approach was taken in a few other cases, which will therefore be discussed. First, in Maclean-Beaudet v Belanger, 2012 CanLII 97365 (ON SCSM) the court found the best interests of dog and the enjoyment, pleasure or recreation that each party received from the dog are relevant in determining custody. The court stated firstly:

“In Rogers v. Rogers, the court addressed the issue of vesting ownership and permanent possession of a dog in a matrimonial dispute. The court held that it is “beyond question” that a dog is personal property and, therefore, capable of an order determining ownership and permanent possession. The court found that the main consideration in determining the issue is not the best interest of the dog but the preservation of the dog as personal property “having regard to its breed, its characteristics and traits, the training received, the use the spouses made of it and the manner in which each found enjoyment, pleasure or recreation from it.” The court, however, emphasized that the best interest of the dog is a consideration. On this point, the court stated:

‘In holding that the best interest of the dog is not the prime consideration, I am mindful that a dog has feelings, is capable of affection, needs to be shown affection and that its affection can be alienated; that its needs must be provided for and that, generally, it must be treated humanely and with all due care and attention to its needs and that these factors are to be considered as well in determining the right to possession or access thereto.’”

The court went on to state:

“In addition, I am guided in reaching my finding of ownership by the factors set out in the case of Rogers referred to at the beginning of these reasons in regard to the best interest of the dog. The defendants obviously derive “enjoyment, pleasure or recreation” from the dogs which, in turn, confirms that there is care and affection given to the dogs by the defendants. The plaintiff has had no relationship with Princess for the past four years. The defendants have had a caring relationship with Princess for over two and one half years. The three puppies have never known the plaintiff and have been cared for by the defendants for over two years. I consider the plaintiff’s action to be more a matter of the breeding business than a matter of companion animals. It is clearly in the best interests of the dogs that they not become the property of the plaintiff.”

This case relied – however, did not seem to follow the previous findings of the Court of Appeal in Warnica v. Gering, 2005 CanLII 30838 (ON CA) and also the trial court’s findings in that matter, specifically disavowing the judgment in Rogers v. Rogers [1980] O.J. No. 2229.

Joint “Custody” of a Dog?

A few other examples would be instructive. For example, in Gauvin v. Schaeffer, 2003 SKQB 78 (CanLII) the court made an order for joint access, stating:

“[12] Shikydoe, the dog, is 11½ years old, a handsome white Husky. His ownership was not addressed by the parties in their interspousal contract. It is arguable, however, that he is included within the personal property clause in the interspousal contract which provides that “. . . all their personal property has been divided between them to their mutual satisfaction and each of them shall hereafter own, have and enjoy independently of any claim or right of the other party all items of personal property now or hereafter in his or her possession . . .”. That provision goes on to specifically address automobiles and a registered retirement savings plan. In the circumstances, I would not include Shikydoe as personal property whose ownership could be determined by a generic provision in the interspousal contract regarding personal property, since no change in his status has been affected in accordance with the contract. Accordingly, I hold that Shikydoe is not addressed in the interspousal contract.

[13] With respect to Shikydoe, however, I have concluded that he is covered by the provisions of The Matrimonial Property Act (now TheFamily Property Act, S.S. 1997, c. F-6.3) and that his title is not exempt from distribution under s. 23 of the Act. Even if his value of $150.00 could be claimed as exempt from distribution under s. 23, his real value is much higher and founded in the intrinsic nature of the relationship which he has formed with the other members of his pack, the plaintiff and the defendant, over his lifetime. Under s. 21 of the Act, the Court directs that Shikydoe be distributed equally between the plaintiff and the defendant. That is, having regard to the matters set out in s. 21(3), the fair and equitable order is that the possession of Shikydoe be shared equally by the plaintiff and by the defendant. That regime is in accordance with the way that Shikydoe was treated by the plaintiff and the defendant during their cohabitation, their marriage, and most of their separation. I do not accept the argument that the interest of the defendant in Shikydoe was transferred to the plaintiff when he moved to Australia for six months subsequent to their separation. If that were the case, it would have been an easy matter for the parties to so agree in writing, but their evidence is contradictory on that point and the plaintiff has failed to meet the requisite evidentiary burden of proof.”

Nonetheless, the later judgment in Ireland v. Ireland, 2010 SKQB 454 refused to follow the above approach, and therefore, the prevailing view in Saskatchewan is that joint custody of an animal cannot be awarded. The above discussion demonstrates that the prevailing view is that dogs are property, and that they should not be divided, nor should anything similar to custody or access orders be made. Instead, the spouse with better title should keep the dog. The contrary approach has also been expressed (yet it does not seem to be widely followed at present). In addition, and on the assumption that one spouse does have a constructive trust interest in the dog, the only real consequence of this would be such spouse is entitled to be paid the market value of his or her share of the dog, and therefore, little will be achieved.

In regard to the last point, the author has found only one case where a court has found a constructive trust existed over an animal, namely Creative Animal Talent v. Woodley, 2010 BCSC 358 (CanLII). In that matter, the agreement between the parties was that the defendant would invest time, money and effort in training the animals – which animals were purchased by the plaintiff. This resulted in an increase in value of the animals. The defendant then refused to return the animals to the plaintiff. The court found that the defendant had a constructive trust interest over the animals, and furthermore, stated that “Where the defendant declines to return an animal owned by the plaintiff, the loss to the plaintiff must be calculated by deducting the value of the defendant’s interest in the animal by way of constructive trust.”

The court stated further “that the defendant had an interest in the animals by way of constructive trust in an amount equal to the increase in value that resulted from the time and expense expended by the defendant on that animal, as per the “value received” approach …”The court therefore held that “the plaintiff can recover the original purchase price of those animals which he rightfully owned but which were retained by the defendant.”

It follows that theoretically, a constructive trust interest over an animal may be claimed. If this is so, then in theory, a spouse may proceed to rely on equitable principles to prove that they are entitled to possession and ownership of the dog – despite the fact that the other spouse also has an interest therein.

In this regard, in Rawluk v. Rawluk, 1990 CanLII 152 (SCC), [1990] 1 S.C.R. 70 (S.C.C.), at 97 the Supreme Court of Canada stated that: “The review of the cases decided by this Court from Murdoch v. Murdoch supra [1973 CanLII 193 (SCC), [1975] 1 S.C.R. 423], to Sorochan, supra [1986 CanLII 23 (SCC), [1986] 2 S.C.R. 38], demonstrates the importance that has been attached to the use of the remedy of constructive trust to achieve a division of property that is as just and equitable as possible. A marital relationship is founded on love and trust. It brings together two people who strive and sacrifice to attain common goals for the benefit of both partners. When it is terminated and acquired assets are to be divided, then in this of all relationships the concept of fairness should predominate in making decisions as to ownership. This was the fundamental equitable principle underlying the application of the constructive trust remedy to matrimonial cases.”

Therefore, if there is a constructive trust interest in the dog – despite the interest of the other party, the court may take into account what is fair overall in deciding who should actually take possession of the dog – though this does not appear to have been explicitly decided in regard to animals in case-law.

However, if one party is entitled to ownership of the dog, it seems that that the other party may not claim from that party in regard to expenses paid while they still had possession of the dog – as they were receiving the benefit of the dog’s companionship during the relevant time, and a valid reason existed for the payment, namely to keep the dog alive and healthy, so that they could continue to enjoy the dog’s companionship.

This is similar to cases which have noted that there is no enrichment where a person handles day-to-day expenses and chores in regard to the property of another, but in turn receives the benefit of living rent-free in the same accommodation. In such a situation, the person is simply being a “thoughtful guest”, and this does not give rise to enrichment. [See, for example, Rubin v. Gendemann, 2011 ABQB 71 (CanLII) at paras 130, 149, 156 and 176; Freake v. Riley, 2010 ABQB 562 (CanLII) at para 11].

Equally so, in the present situation, the spouse in possession of the dog is simply being a “thoughtful possessor” of the dog by expending on its day-to-day needs and would be doing so simply because of his or her possession of the dog. Indeed, much like a person who lives rent-free at a property is expected to pay certain expenses without something in return, a person who has possession and the companionship of another’s dog can be expected to take care of its day-to-day expenses without receiving anything in return. This is insufficient to establish enrichment, as no special and extraordinary expenses would have been paid for the dog with a view to the future, and instead, only the present needs of the dog during the time they were in possession were provided for.

In addition, the party who eventually receives ownership of the dog would also not be enriched in the above situation (as the expenses would not really increase the monetary value of the dog itself). Therefore, the situation can be distinguished from those where the animal was trained and increased in value because of the efforts of another party (as in the British Columbia case quoted earlier).

Summary

The case studies show that while dog owners may view their furry friends as family, the courts still see pets as property.

What is intriguing is that animal abuse laws consider animals to be more than property, leading to a situation where one court will view a dog as property while another views the same dog as having value beyond that of simple property.

Given the increasing frequency with which courts are faced with marital and relationship breakdowns involving dogs, it would seem prudent for courts to reconsider the stance on “pets as property” and give due consideration to the new role dogs hold in our society as more than pets.