Break-ups: who gets the pets?
By Roxanne Ker
Break-ups and divorces are prevalent. The division of the chattels can be a challenge, even if the parties are not formally married or are married out of community of property.
In some jurisdictions, such as Canada and the UK, the ‘division’ of family pets has often received judicial attention. There have even been instances of pet “kidnapping”.
In Baker v Harmina, a judgement of the Court of Appeal of Newfoundland and Labrador (Canada) on 6 March 2018, Mya, a Bernedoodle (a cross between a Bernese Mountain Dog and a Poodle) took centre stage.
Whilst David Baker and Kelsey Harmina were in a permanent relationship, Mya became a beloved ‘family member’. David bought Mya as his dog, although they chose Mya together, and Kelsey advanced part of the purchase price (for which David later fully reimbursed her). David and Kelsey both bonded with Mya.
When they split up, the initial arrangement was that Mya would stay with Kelsey, but they would ‘share’ Mya. This did not work well. Indeed, they actually took out peace bonds against each other (in Canadian law, a peace bond is a Court order that requires a person to keep the peace and be on good behaviour for a period of time).
So David sued Kelsey for an order that she must return Mya to him. The Court of first instance held that when David bought Mya, he became the owner of Mya, and David won. On appeal, Kelsey mostly won; as the second Court, taking a broader look at the relationship between the parties and Mya, held that David and Kelsey owned Mya jointly; and ordered a “custody” schedule – David would keep Mya while in town and Kelsey while he was away. Presumably still stinging from the failure of the initial informal “custody” arrangement, David appealed to the Court of Appeal.
The minority (one Judge) would have dismissed the appeal, as she agreed with the “broader look at the relationship” approach of the second Court:
“I am of the view that the ownership of Mya involved much more than a determination of who paid for her at the time of purchase. The ownership of a dog is a more complex and nuanced question than the ownership of, say, a bicycle.“
However, the majority (two Judges) found in favour of David; Mya was his dog, and only his dog. The majority upheld the narrower traditional approach to determining ownership:
“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 … The question is who owns it.“
The majority stated the following in respect of the “broader look at the relationship” approach:
“While expanding the scope of joint ownership seems at first to be progressive and forward thinking, it is unlikely to be a kindness either for the parties or for the public. … The worst result of all would be a conclusion that the dog is joint property.“
On these specific facts, a South African Court ought to find along the same lines as the majority in the Court of Appeal. But, one may come across a Judge who, like the minority in the Court of Appeal may be convinced into ‘massaging’ the facts.