Former couple's custody battle over their dog divides N.L.'s top court - InfoNews

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Former couple's custody battle over their dog divides N.L.'s top court

March 12, 2018 - 9:59 AM

ST. JOHN'S, N.L. - In a case that divided Newfoundland and Labrador's top court over what constitutes pet ownership, a man has been awarded sole custody of a dog following a break-up with his girlfriend.

David Baker and Kelsey Harmina of St. John's purchased Mya, a Bernese mountain dog-poodle mix, in October 2014.

After the couple split, they fought over custody of Mya in a case that eventually made its way to the province's Court of Appeal.

First, a small claims court judge determined that Baker was Mya's sole owner, saying that the law considers dogs personal property and that Baker paid for Mya.

Harmina appealed that decision, and a provincial Supreme Court judge found the small claims judge didn't consider the full context of the relationship, concluding Mya should be owned jointly.

Baker then appealed that decision, and in a recently released ruling two of three Appeal Court judges agreed that the man is the dog’s sole owner, saying the small claims judge was right to rely on the traditional approach to determine ownership.

"In the eyes of the law a dog is an item of personal property," Justice Charles White said in the panel’s written decision, which was supported by Justice Michael Harrington.

"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."

But the third judge dissented, saying the pair should have joint custody, because people often form strong emotional relationships with their pets.

Justice Lois Hoegg said she believes ownership of a dog involves much more than a determination of who paid for it.

"Ownership of a dog is more complicated to decide than, say, a car, or a piece of furniture, for ... it is not as though animate property, like a dog, is a divisible asset," she wrote.

"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."

Mya came to Newfoundland from an Ontario kennel in 2014 and was greeted at the airport by Harmina. Baker was in Alberta and worked 14 days out of every 21, and Harmina took care of Mya during those times.

Hoegg noted the couple made decisions about the dog together, and that the woman signed for the dog at the airport, took care of the dog and contributed to other expenses.

"The ownership of a dog is a more complex and nuanced question than the ownership of, say, a bicycle," she said. "People acquire personal property all the time, usually solely but sometimes jointly, with others, and in doing so, pay little attention to legal rules respecting exactly who is acquiring title to the property."

White wrote that if the couple was given joint ownership, it could create more problems.

"An order for sharing does not end the conflict," he said. "Instead, it creates a regularly scheduled opportunity for conflict that recurs for the rest of the dog’s life."

In her dissent, Hoegg also paused to make something clear: "I must say something more. I am disturbed by the notion that courts should not spend their precious time and resources determining the ownership of dogs."

"In this regard, I emphasize the emotional bonds between people and their dogs, and say that fair decisions respecting the ownership and possession of dogs can be much more important to litigants and to society than decisions respecting the ownership of a piece of furniture or a few dollars," said Hoegg.

"While I do not wish my remarks to be interpreted as advocating or encouraging parties to litigate the ownership and possession of their dogs, I say there is no principled reason why people in a dispute over a dog cannot avail of the courts for assistance in resolving such a dispute."

— By Aly Thomson in Halifax.

News from © The Canadian Press, 2018
The Canadian Press

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