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Court treatment of pets in divorce raises key questions

In the context of divorce, the law is clear that pets are considered property – but arriving at this conclusion has been a years-long struggle for the courts, Toronto family lawyer Jennifer Krob writes in the Advocates’ Society’s Young Advocates' newsletter.

In an excerpt of her essay, Tables, Chairs, Cats, and Dogs: The Four-Legged Property of Divorcing Spouses" published in Keeping Tabs, a monthly newsletter by the Young Advocates’ Standing Committee, Krob, an associate with Brauti Thorning Zibarras LLP, says that orders respecting pets in divorces have been possessory, custodial and a mix of both.

“These varied approaches seem to indicate that some find it discomfiting to place pets in the same category as toasters,” writes Krob, adding that the dominant line of jurisprudence when it comes to pets is that they are “simple chattels, like couches and cutlery.”

One of the earliest cases dealing with a claim for custody of a pet was the 1987 Manitoba case of Armstrong v. Armstrong, where a wife’s claim for custody of the family dog was dismissed.

Similarly, in the 2004 case of Warnica v. Gering, both parties sought shared joint custody of a dog, claiming that he was not a possession, writes Krob. The court dismissed the claim “and suggested that it was a waste of court resources," she adds.

Krob writes, however, that there have been cases where custody orders “have been hidden in the language of possession to disguise their true nature.

“In the Saskatchewan case of Gauvin v. Schaeffer003 SKQB 78, the Honourable Justice Kraus made an order for possession of the parties’ dog, ‘a handsome white Husky’ named Shikydoe, on an access schedule,” she writes.

While these cases are peculiarities, says Krob, they have value for the questions they raise, “not the least of which is why a consideration of what is best for an animal must be disguised in the first place.”

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