Is a dog different from silverware, or a television? Of course it is. A dog is alive. It has feelings. It is, for many good reasons, “man’s best friend.” When a couple breaks up and they divide their stuff, they don’t worry about whether the silverware will be happy. Perhaps more importantly, they don’t worry about being emotionally devastated if they don’t get the silverware. And, usually, they don’t have the temptation to violently attack their ex over the silverware. But when it comes to a dog, it’s a different story.

People will go to extraordinary lengths to keep a dog. They’ll go to court. If they lose, they’ll go back again to appeal. They will spend thousands of dollars on legal fees. If they keep losing they’ll consider appealing to the United Nations, or perhaps the international war crimes tribunal in The Hague. If all else fails, they will barricade themselves and, if necessary, take hostages. As Warren Zevon famously sang: send lawyers, guns and money.

It’s understandable. Anyone who has ever had a dog, and loved that dog, and cherished that dog, knows perfectly well that dogs tend to occupy a very special place in the human family. However, in the eyes of the law, you can forget all that — a dog is nothing more than a piece of property. When it comes to deciding who gets the dog, the legal test has nothing to do with “the best interests of the dog,” or indeed the best interests of the human. The only thing that matters is who can prove legal ownership of the animal.

Sometimes a dog is given by one person to another as a “gift,” and if this can be proved, then the person who received the gift is the rightful owner. A recent lawsuit out of Nova Scotia illustrates this point. The beast in question was a longhaired Chihuahua named Tiny Tim.

Tiny Tim had been picked out and paid for by one of the women in a same-sex relationship. She also provided most of the day-to-day care and feeding. Her partner left, leaving the dog behind, but subsequently brought an action to regain possession of the Chihuahua on the basis that he had been a gift, and she ought to have him.

There were no documents to provide evidence of ownership — the dog was never registered with the municipality or with a Kennel Club, and the veterinarian bills appeared to fluctuate, naming as “owner” whoever happened to bring the dog in and pay the bill on a given visit. So the judge looked at all the circumstances and ruled that Tiny Tim was indeed a gift.

Noting that the concept of a gift is “legally more complex and problematic” than most people realize, and that “the law is suspicious of alleged gifts,” the judge nevertheless found that Tiny Tim’s purchaser “appears to have been principally motivated by a desire to strengthen or salvage her relationship with her partner. She used the term ‘gift,’ and connected it to her partner’s birthday. Her partner clearly accepted the gift.”

The judge added: “I have no doubt that the dog currently has a good home, 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.”

It is important to realize that this case was brought in Small Claims Court, and therefore it received a full, in-depth hearing. When dog-based lawsuits are launched in the higher courts, however, the judges tend to have less patience. A good example is an Ontario case involving a claim for custody of a mixed-breed dog named Tuxedo, which went all the way to the Court of Appeal.

The trial-level judge said that no court should be in the business of making custody orders for pets. “I acknowledge,” he added, “that pets are of great importance to human beings. 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.”

He dismissed the claim. Undeterred, the plaintiff — whom the judge described as someone who “seems to know no reasonable limit” — appealed to the province’s highest court. They were not pleased. The appeal court tossed out the claim under a provision of the Family Law Rules which allows the 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.” Tiny Tim and Tuxedo might feel differently, and clearly the humans competing for these noble beasts feel differently, but — insensitive though it may be — that is the law.


Bill Rogers is a Toronto lawyer and blogger covering family law and fertility law issues, and a columnist for the Medical Post covering the law of malpractice. He can be contacted at