In April 2018 Moe Hannah posted about the state of, what I affectionately call, ‘Dog Law’ in Canada. At that time, we reviewed recent cases where separating parties asked the courts to make a determination on where their pet would live. The overriding approach taken by the courts was simple: pets are property and decisions about pets are made based on who has the best case for legal ownership NOT on what might be in the pets best interest. If you want to read that blog, you can check it out here
At the time, we did note some dissenters to this approach and I can’t help but feel that the voices standing opposed may soon be louder. The United Kingdom has recently introduced a bill that would deem animals as sentient, meaning able to feel and perceive things. Lawyer Victoria Shroff has written an excellent article about the potential impacts of this bill which you can read on the Canadian Bar Association’s website here (National | Recognizing animals in Canada as sentient (nationalmagazine.ca)). In short, Ms. Shroff argues that animals deserve and need legal protection from humans and that considering an animal as ‘someone’ instead of ‘something’ will force humans to take responsibility and treat animals humanely.
These arguments raise important family law questions: how would recognizing an animal as someone with feelings impact the court’s approach to ‘Dog Law’ and, ultimately, to the division of property? It is not a stretch to consider pet ownership from this perspective. The ownership of dogs and cats (ferrets, hamsters, cockatiels, goldfish, tarantulas, etc.) can be examined from a ‘best interests’ perspective. Who has the best plan for care of the animal? Who do they have a closer bond with? Who can provide the best living arrangements or medical care? This is not dissimilar from the approach taken with children.
But recognizing animals as sentient can be more complicated when we consider animals outside of the home. What about farm animals who can easily (and are often) subscribed a dollar value and accounted for in the division of property? Should they be treated differently from animals inside the home? Do they require further consideration than a line on a spreadsheet? Can you consider their treatment in the division of property from a value based and a best interests perspective? What if one of the parties owns a dog breeding operation? This may be a value associated with the business but could there be arguments about the merits of breeding and how the animals might feel?
To push this all a step further – would recognizing an animal as something that can feel and perceive and taking into account their best interests ever create a need for monetary support of that animal?
At this point there are more questions than answers and we may be a fair distance from seeing something similar in Canada. A review of recent case law sees Judges relying on the old rallying cry: pets are property. In Schindle v Schindle (2021 ABQB 99) one party brought an application for a weekly one hour visit with the family dog following separation. The Judge relied on the previously discussed case of Henderson and stated that it was inappropriate to make a custody ruling on a property matter but advised that the dog remained joint property for which either party could apply for a division.
For now the matter remains settled, but watch this space for changes and updates to ‘Dog Law’ in all of it’s applications.
