Decision may signal new remedies for custody of family pets

By Staff

The ethical treatment of animals has been an ongoing trend in modern society, but have we reached a point where courts are considering the best interests of the family pet in deciding who gets custody of animals in a divorce, asks Toronto family and criminal lawyer Leanne Townsend in The Lawyer’s Daily.

If the dissenting judge in a recent decision from the Court of Appeal of Newfoundland and Labrador has her say, our courts may be moving in this direction, says Townsend, a partner with Brauti Thorning LLP.

In the case, the court was faced with deciding who should get custody of the family dog when a sparring couple couldn’t resolve this issue, the article says.

“While the majority of the court upheld the decision of the small claims judge, who had awarded custody to [the husband] basing its decision on simple legal principles of property ownership, a strong dissent written by Justice Lois Hoegg provides some very persuasive arguments as to why the family dog should not be treated like a couch or a set of cutlery when determining post-breakup ownership,” Townsend writes.

The judge was of the view that ownership of the dog was a more complex issue than simply who bought her, she says.

The article says that in agreeing with the Supreme Court Trial Division (SCTD) judge who had overturned the small claims court's decision, Justice Hoegg wrote: “The ownership of a dog is a more complex and nuanced question than the ownership of, say, a bicycle.”

She went on to recite a number of criteria referred to by both the SCTD judge and adjudicator Augustus Richardson in a small claims court decision of a similar dispute, Townsend writes. The judge held that the following principles are helpful in determining ownership of the family pet:

  • Animals (dogs included) are considered in law to be personal property;
  • Disputes between people claiming the right to possess an animal are determined on the basis of ownership (or agreements as to ownership), not on the basis of the best interests of the animal;
  • Ownership of — and hence the right to possess — an animal is a question of law determined on the facts;
  • Where two persons contest the ownership of an animal, the court will consider such factors as the following:
  • Whether the animal was owned or possessed by one of the people prior to the beginning of their relationship;
  • Any express or implied agreement as to ownership, made either at the time the animal was acquired or after;
  • The nature of the relationship between the people contesting ownership at the time the animal was first acquired;
  • Who purchased or raised the animal;
  • Who exercised care and control of the animal;
  • Who bore the burden of the care and comfort of the animal;
  • Who paid the expenses of the animal’s upkeep;
  • Whether a gift of the animal was made at any time by the original owner to the other person;
  • What happened to the animal after the relationship between the contestants changed; and,
  • Any other indicia of ownership or evidence of any agreements, relevant to the issue of who has or should have ownership of the animal.

While the judge explicitly states that ownership should not be based on the best interest of the animal, a number of the criteria cited — who raised the animal and bore the burden of its care — are indirectly taking the pet’s best interest into account, the article says.

“While it is undesirable to encourage warring spouses to waste precious court time and money arguing over custody of their pet, it is equally undesirable to equate Rover with the kitchen table when deciding possession,” Townsend writes.

“The dissent of Justice Hoegg seems to provide a view of family pets that is more in keeping with the role played by pets as valued family members. In fact, there are many dog owners who prefer the company of their dog to the company of people.

"Given the role that pets play in modern-day families and the current movement towards the more ethical treatment of animals, maybe it is time that the courts move away from the concept of the dog as a chattel, and while not giving Rover status as a person, at least deciding his ownership based on a broader range of criteria than simply who purchased him. If a corporation can have the rights of a person, why can’t the family dog have a broader status than a mere chattel?”

While reforming the law in this direction may create the potential for litigation, as Justice Hoegg notes at paragraph 59, “Our civil and family courts are routinely engaged in cases of which the spoils are a whole lot less than a family dog. As a society we accept without question that our courts exist to resolve disputes that parties cannot resolve themselves.”

Townsend points out that it is the court’s role to evolve with the times — otherwise many of the fundamental rights enjoyed by so many today would not be in place.

“The goal of the legal system isn’t to avoid complexity at all costs, but rather to be just and fair. If there is reform in this direction, other changes may need to be made,” she says.

One suggestion is to develop a specialized process for resolving disputes such as Ontario’s Line Fences Act, which provides for a method to arbitrate disputes between neighbouring property owners, the article says.

A Nova Scotia small claims court judge took this concept further in a case where he called for a new court to tackle pet ownership and custody issues that would determine “the best interest of the dog,” Townsend writes.

“Adjudicator Eric Slone stated in this case, ‘In a more perfect world there would be special laws recognizing pets as living, feeling creatures with rights to be looked after by those who best meet their needs or interests.’”

With the animal rights movement gaining momentum it’s reasonable to predict that there will be reforms in this area and that family pets will increasingly not be treated the same as other property in a separation or divorce, Townsend writes.

“It will be interesting to see whether other courts pick up on the dissenting view of Justice Hoegg in other parts of Canada.”

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