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Pets still property under the law, despite vocal opposition

While the approach may be out of date, the law still treats animals as property, Toronto family lawyer Jennifer Samara Shuber tells AdvocateDaily.com.

Shuber, a lawyer with Beard Winter LLP, says a string of decisions from across the country confirming that pets are viewed no differently than furniture or personal belongings in divorce proceedings can be disturbing to animal lovers.

“There are people who believe that statutes need to reflect the new reality of how people view their pets, which is more like part of the family. It’s an ongoing debate, but for now, the law is the law and pets are treated as property,” she says. “It’s a bit of an outmoded view that whoever shelled out the money for the pet is the one who gets to keep it, but whether it’s a dog, a ring or a car, they’re all treated the same way.”  

As a result, she says pet owners may wish to enter into contracts akin to prenuptial agreements, laying out what should happen to animals in the event of a separation.

“People are reluctant to do that because they’re worried it forecasts a breakup,” Shuber says.  

Animal rights advocates have hailed a Newfoundland and Labrador decision as a step forward in the debate.

While the majority of the three judges on the province’s Court of Appeal reiterated the traditional legal approach by ruling that an ex-couple’s dog should go to the boyfriend because he had paid for it, a dissenting member of the panel said she would have awarded the girlfriend co-ownership after she argued she was the pet’s primary caregiver.

"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," the dissent reads.

Shuber says advocates may also be boosted by existing distinctions drawn in family law disputes over items of property with sentimental value to one party.

“If a family heirloom on the wife’s side was gifted to the couple when they were married, a court will consider the emotional attachment she may have if there’s a fight over ownership,” she explains.

But Shuber says pet owners who go to court in the hopes of finding someone who will treat their pet like a child are still likely to receive short shrift from many judges. For example, in a 2016 Saskatchewan case, a woman asked the court to order that two dogs owned with her estranged husband should stay with her after their separation.

Labelling him a “cat person,” the woman conceded her ex should be granted “reasonable access” to the dogs for limited visits on agreed days, while the husband countered with an offer that they each keep one but that she could choose which dog she preferred.

However, Queen’s Bench Justice Richard Danyliuk used his decision to reject the “custody approach” to pets altogether.

“I say without reservation that the prospect of treating pets as children would be treated holds absolutely no attraction for me,” he wrote. “I say this cognizant that many dog owners, perhaps most of them, choose to treat the family dog not as property but as family. Certainly, that is what these parties did. But that choice does not alter the law that pets are property.

"My present task is not to act with emotion or to validate the personal perspective of pet owners within the legal context. Rather, it is to interpret and then apply the law. And for legal purposes, there can be no doubt: Dogs are property.”

The judge then went on to describe the whole dispute over the pets as “wasteful” of scarce judicial resources that should be discouraged.

“I urge both parties to attempt to resolve this matter prior to the necessity of a pre-trial conference and trial. Both parties should bear in mind that if the court cannot reach a decision on where the dogs go, it is open to the court under the legislation to order them sold and the proceeds split – something I am sure neither party wants,” Danyliuk added.

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