During the hectic times that dear ol’ Osgoode is experiencing, we tend to rely on our furry friends to give us comfort through this strike and exam season crunch. The therapy dogs that visit Osgoode, for instance, have endured many of my hugs. My own cats act like familiars more than pets but then again maybe I am secretly a witch lawyer-to-be? But that’s a thought for another article surely!
Now, when we think of our cute kittens, fluffy poodles, sleek tabbies, and huggable golden retrievers, another thought beyond their affection may pique your interest, one that relates to something we learn in law… property. I do not know about you, but my pets are my pets. I paid for them and thus they are mine. Yet, my pets form emotional bonds with the rest of my family members and give so much joy to them. So then is my pet mine because I was the one who whipped out my credit card and purchased the loveable furry darlings, or do my family members have a claim to sharing custody with me?
Interestingly enough, this sort of question was recently answered by the Newfoundland Court of Appeal, when a couple who had ended their relationship had an unresolved dispute over who had custody of the dog. The purchase of the dog was made entirely by the man, however, the woman claimed that she spent a significant amount of time tending to the dog. In small claims court, the judge determined that dogs and pets generally are considered personal property. Therefore, there apply instances of personal property being purchased jointly or individually. In this particular case, the man got sole custody of the dog. On appeal to the Superior Court, the appeal for joint custody was allowed due to the small claims judge not having considered all factors and contexts of the relationship that would conclude with the woman sharing ownership. Thus, the battle for the hound was on and the man appealed to the Court of Appeal. In a 3/2 judgment, the man was once more deemed to be the sole owner; the small claims judge took the appropriate approach in determining said ownership. The law is distinct from emotional attachments and sentimental feelings. It is a tool to make a black and white decision sometimes on issues or things that lay more in the grey area of life.
Ultimately, at the end of the lawful day, a pet is usually purchased. When you go to the vet or a groomer, you register the pet under a name, typically that of the person who purchased the animal. I do not think it is fair for both parties who have emotional bonds with their pet to go to court to seek an answer to their issue. The court will not be able to input some form of humanity into the ruling of who gave the dog or cat more affection or treats or played with it more. Rather, the court will address the question of who owns the pet. To me, it begs the question “how should law handle pets in custody disputes?” The ownership of a pet tends to resemble the relationship of a parent to a child rather than a mere possession of an item. The emotional bonds and ties that are formed with responsibilities undertaken to take care of an animal almost entirely resemble a parent-child relationship. Hence, if a couple never married and only had the pet as a shared responsibility, why is it reasonable to continue with the traditional approach of pets being considered personal property? Pets fall under the grey area of our lives, but treating a living creature that grants people much love, affection, loyalty, and communication as mere value-based property seems too harsh. It might be better to take on the approach of a dear friend of mine: write a contract. When I was in undergrad, a close friend had been with her boyfriend for a few years and they decided to rescue a Beagle. Banister, the puppy, was deeply loved and cherished by both, but my friend is quite risk-averse. She paid the adoption fee while her boyfriend paid for everything else. Yet, in a written agreement signed by both parties with a witness, Banister was to be hers in the event that they separated. As I progressed in law school and she in grad school, Banister remained her cherished Beagle minus the boyfriend. I remember asking her about it and she was nonchalantly claiming that while her ex-boyfriend was sad and grieving the loss of the dog in his life, he understood that the contract was binding on him (there was all sorts of wording in there that I skimmed through and just thought ‘wow, girl’). At the end of the day, shared custody between parties that fall out or just want to move on and need space may not be practical with the dog or cat in the room. It might seem harsh and unfair to the person who loses access to their beloved pet, but in the end, sometimes a person’s heart and sanity need to be prioritized. More importantly, a pet needs stability and who knows what misbehaviours the pet will engage in by having a shared custody situation imposed upon them.
For me, the ruling makes sense as the Court of Appeal followed precedent regarding how pets are to be treated in law. Of course, that is not to say that my own pets will not be missed and loved when I am not with them or when my parents are not. Alas, my cats are my cats in both the emotional and legal sense of how to consider a pet in your life.