Amid animal-related family law reform push, TMU launching pet law legal clinic

As BC legal reform breaks new ground in the family law’s treatment of pets, the Lincoln Alexander School of Law at Toronto Metropolitan University has launched a new legal clinic for pet parents in the Greater Toronto Area.

Rebecca Field Jager is the founder and student lead at the Pro Bone-o Pet Dispute Clinic. This free virtual clinic offers information and referral services to people fighting over who retains the pet after a relationship dissolution. Jager says the clinic aims to address a growing need stemming from the pandemic when pet purchases surged, and relationships broke down.

“Married or non-married, it all comes down to property,” says Jager. “Pets are treated like personal property under Ontario law.”

She wanted to provide a service to former cohabitating couples who dealt with their disputes over “who gets the dog?” in a way that kept the animal’s interests in mind.

“Ontario law hasn't kept up with the changing views of society – the way we see animals and their very special place in people's families and people’s hearts.”

In the 2018 case, Baker v. Harmina, the Newfoundland and Labrador Court of Appeal dealt with a dispute between a former couple over what to do with their dog Mya.

David Baker and Kelsey Harmina moved in together in 2014 and split two years later. Mya, a cross between a Bernese Mountain dog and a poodle, stayed with Harmina after the breakup, and Baker brought the matter to small claims court. He argued that he was Mya's rightful owner because he had arranged for the breeder, paid for the purchase, and paid most of the dog’s expenses. Harmina said the dog was jointly owned, she shared financial responsibility, and that Mya spent more time with her.

The small claims court sided with Baker. Harmina appealed, and she was successful at the Supreme Court Trial Division. Baker ultimately won at the appeal court.

Dissenting in part, Justice Lois Hoegg wrote: “Determining the ownership of family pets when families break apart can be challenging. Ownership of a dog is more complicated to decide than, say, a car or a piece of furniture… People form strong emotional relationships with their dogs, and it cannot be seriously argued otherwise. 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. Accordingly, ‘who gets the dog?’ can pose particular difficulty for separating family members and for courts who come to the assistance of family members when they cannot agree on ‘who gets the dog.’”

The view that family pets are more than mere property as the law has traditionally treated them is reflected in recent amendments to BC’s Family Law Act, which came into force in January. Under the changes, in separation and divorce cases, courts will assess the pets’ best interests and consider who has historically taken care of the animal and its relationship with children when determining which party takes possession of the pet. Courts in the province can now also order parties to uphold a previous agreement for sharing ownership or for exclusive ownership by one party. However, while the amendments allow the BC Supreme Court to uphold prior agreements on shared or exclusive possession and make orders to give possession of the pet to one party or the other, the court cannot order shared possession.

Russell Alexander, founder and senior partner at Russell Alexander Family Lawyer, said that pets are often used as pawns in litigation. When one party has ill intent or is upset, and the relationship ends, they often use the pet against the other party. He said the BC approach was good and expects it to cause a ripple effect across the country.

The Pro Bone-o Pet Dispute Clinic has nine students guided by two faculty advisors. Jager approached the law school with the idea of addressing the growing legal issue and providing more clinical opportunities for students. Her team’s goals are to build partnerships in the legal community and pet industry, develop comprehensive training modules that focus on family mediation and client engagement, and develop a formidable roster of services, including mediation.