B.C. man wins months-long dog custody battle after sharing agreement with ex breaks down

A man in Pemberton, B.C., has gotten his dog back after a months-long battle with his ex-girlfriend that started with shared custody and escalated to her making a unilateral decision to keep the pet to herself in Vancouver.

The B.C. Civil Resolution Tribunal, which deals with small claims disputes, recently decided the man is the dog's rightful owner even though he and his ex both argued they were the dog's primary caregiver. 

Most provinces in Canada define dogs and other pets as property — regardless of who thinks they provide better care or are more attached to the animal.

"The law is clear that pets should not be treated in law as family members but rather as personal property," wrote tribunal member Shelley Lopez. 

"Although it may seem harsh, disputes about what happens to pets after breakups are about ownership, rather than 'custody.'"

The man's lawyer, animal law specialist Rebeka Breder, says pet custody cases are becoming increasingly common. 

"I think it's because people are having less kids," Breder said. "They treat their pets like kids, as they should." 

Breder says there have been cases in B.C. that do take animal welfare into account. However, most still don't, and she says that highlights the need to have written agreements in case puppy parents split up.

Relationship breakdown

According to the decision, Ian Birnie and Savannah Austin had been living together for about 18 months when they jointly purchased the puppy, a vizsla named Harlen, in November 2016.

They split up six months later.

At first, the couple shared custody of the dog, the decision says. For 18 months following the breakup, the pair split time with Harlen and shared expenses like vet bills and other dog care.

Austin and Birnie each told the tribunal that they had been Harlen's primary caregiver, and both argued the dog would be better off in their care. 

Ian Birnie

However, Birnie provided proof in the form of text messages from September 2018 that showed he and Austin agreed she would let him have Harlen to himself in exchange for a payment of $1,950, which they agreed he would pay when his work season ended. 

According to the decision, their "amicable relationship" began to fall apart when Austin entered her ex-boyfriend's home without his permission later that month to retrieve some of her belongings.

In October, the pair agreed that Austin could keep Harlen until that spring, when she would get a new puppy — as long as Birnie could have Harlen over the holidays.

Birnie dropped off the dog with Austin in November. A week later, Austin told him she was going to keep Harlen permanently and would not discuss it further, the decision says. 

After sending Austin multiple messages trying to locate Harlen, Birnie pursued the matter with the help of a lawyer. The tribunal ordered Austin to return the dog to Birnie, and for Birnie to pay her the $1,950 less the tribunal fees of $75.

CBC News reached out to Austin for comment, but she didn't respond. 

Get it in writing

Lawyer Rebeka Breder says legal precedents for pet custody vary across the country.

In B.C., judges in some cases she's represented have considered the best interests of the animal. But Breder also points out that last year Newfoundland's highest court decided those considerations aren't necessary

Most often, Breder says, the animal's welfare only plays into account if ownership is unclear or if there's abuse or neglect.

Ian Birnie

Breder recommends that before a couple welcomes a pet into their home, they should discuss what would happen to the animal if they split up. However, she understands that's not likely to happen. 

In those cases, she suggests exes put a detailed agreement in writing after they break up — by text message if necessary but preferably by email because they are more easily saved and searched.

Breder says she disagrees with only treating pets as property instead of considering the animal's best interests, but pet owners should keep current laws in mind until the courts decide otherwise.