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Scientific research and societal interest and knowledge of animal welfare have developed into an important field in contemporary North American society. As animals play a more significant role in the lives of Canadians, animal welfare becomes increasingly more important. A 2016 survey conducted by the Canadian Animal Health Institute estimated that 41% of Canadian households have at least one dog, and 37% of households have at least one cat. Household pets are referred to many as ‘members of the family’. Unfortunately, couple divorce or separation is equally as abundant in Canada, and will consequently have an effect on the family pet(s). This poses the question of what happens to the family pet(s) after partners separate? Is litigation the best route to determine custody and ownership? Or will mediation provide separating parties with the best results.
Animals are considered to be property under Canadian law, therefore when a pet custody case is brought before a judge, the animal(s) in question will frequently be treated no different from an inanimate object. Quebec is the first and only province in Canada to take action against these current laws by passing Bill 54. This bill changes the property status of animals and instead identifies them as sentient beings. In Ontario, animals are still considered property and therefore litigation does not provide a conciliatory environment for parties to reach any form of custody agreement. Since animals are property, a judge may rule in favour of the individual who purchased the animal and simply compensate the opposing party with the monetary value of the animal.
The Ontario judicial court system is already incredibly delayed and backed up, which has led to nearly 43% of cases being thrown out. Litigating a pet custody dispute will not only add another layer to the delays, but if a case is brought before the court a judge will likely assess the case using property law and not take into consideration the best interest of the animal. An alternative route, that would put priority on the animal’s interests, would be mediation. Mediation is used more readily in child custody disputes, because it allows parties involved to reach a more amicable solution, and keep the child’s best interests a priority.
In Canada, excluding Quebec, animals are considered to be property, and if a pet custody application is brought before a judge it will often be rejected and ridiculed for tying up valuable resources. Judges may also make comparisons between an animal and an inanimate object and insult applicants for treating their pet disputes equivalently to a child custody disputes. This demeans the value and importance an animal plays in a person’s life. An example of this behaviour and mentality is reflected in the Henderson v Henderson case, a widely publicized decision on the interim possession of two beloved dogs. Justice Danyliuk of the Saskatchewan Queen’s Bench forcefully rejected the application that the custody decision be treated like that of children. In reaching his decision on that issue, Justice Danyliuk relied on two principles: the recognition and treatment of children as human beings and pets as animals under the law; and the current understanding of pets as property within the law. He argued that the ownership analysis (factors relating to payment and purchase of the property) should be the only consideration in determining custody.
Further, Justice Danyliuk failed to consider that animals are substantially different from other property, in that they are offered protection from cruelty and neglect. These laws that protect animals are the defining differences between the dogs referred to in this case and a set of butter knives (the property he chooses to compare them to). Animal protection legislation actually demonstrates the similarities between animals and children, a point which Justice Danyliuk chooses to ignore. Consequently, his refusal to make a determination of visitation rights because dogs are “not human children” is not in line with today’s societal views of the value and meaning pets have in an individual’s life. By ignoring the importance pets have in a human’s life, and denying an individual visitation based off property analysis may result in harming the psychological well-being of the humans seeking such a remedy. The fact that animals are protected from cruelty, neglect and mistreatment should propel a review of custody to consider the best interests of the animal. This case demonstrates the lack of awareness and the ignorance the judicial system has with regards to animals and the role they play in society.
The mentality of this judge and the manner in which he dealt with this case, does not deviate far from the norm. However, there have been new developments outside of Canada that have taken charge of how pets are dealt within a divorce case. On January 2017, Alaska’s Governor Bill Walker signed new legislation that amends the state’s divorce law and has major implications to animals and their welfare. This new amendment disallows a judge from considering or comparing an animal to property, and takes into account “the well-being of the animal” into consideration. What this law also allows is the option of pet joint custody arrangements. The Washington Post received a statement from David Favre, an animal law professor at Michigan State University, stating that “for the first time, a state has specifically said that a companion animal has visibility in a divorce proceeding beyond that of property — that the court may award custody on the basis of what is best for the dog, not the human owners.” Hopefully, these new amendments will perpetuate further discussion and change nationwide so pets are no longer compared to as property under the eyes of the law.
 Companion Animal Health. (2016). Retrieved January 16, 2017, from http://www.cahi-icsa.ca/companion-animal-health/
 Bill 54: An Act to Improve the Legal Situation of Animals. 1st Sess, 41st Leg, Quebec, 2015
 Rushowy, K. (2016, November 21). Ontario court delays threatening 6,000 criminal cases, Conservatives say. The Star. Retrieved January 17, 2017, from https://www.thestar.com/news/queenspark/2016/11/21/ontario-court-delays-threatening-6000-criminal-cases-conservatives-say.html
 Henderson v Henderson (Henderson), 2016 SKQB 282, 2016 CarswellSask 579, accessed from Westlaw Canada, para 44.
 In Alaska, Divorce Courts Must Now Consider Pet Wellbeing. (2017, January 26). The Huffington Post. Retrieved February 3, 2017, from http://www.huffingtonpost.com/entry/alaska-divorce-pet-law_us_588a1ef3e4b0024605fe3246
–The Modernizing Animal Protections Act
Bill C-246, the Modernizing Animal Protections Act (“Bill”) is an Act to amend the Canadian Criminal Code (“Code”), the Fisheries Act, the Textile Labelling Act, the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act and the Canada Consumer Product Safety Act. The Bill was introduced by liberal MP Nathaniel Erskine-Smith (“Erskine-Smith), for Beaches East Yok, as a private member’s bill on February 26th, 2016.
This Bill is the first of its kind to provide substantive changes to animal protection legislation in over a century. In fact, up until now, sadly, Canada has lagged behind other developed countries and has some of the weakest animal protection legislation. Canada’s animal welfare laws have not substantively changed since 1892. Canada needs to make legislative changes as this is not aligned with the majority of the Canadian population’s values toward animal protection.
Presently, the Bill is in its second reading as of May 9, 2016. If it proceeds to committee this fall, Erksine-Smith has agreed to consult with stakeholders on improving the language of the Bill. As he stated, “If we have concerns about unintended consequences in the language, my intention is not to affect accepted animal-use practices, so let’s fix the language so it doesn’t.”
The Bill consolidates three pieces of legislation and aims to achieve the following: 1) A ban on the importation of shark fins. 2) A ban on the importation and sale of cat and dog fur, and a requirement to label the source of fur. 3) Modernize existing animal cruelty offences in the Code.
- A Ban on the Importation of Shark Fins:
The Bill aims to put an end to the cruel practice of shark finning, that is, the importation of shark fins that have been removed from a shark carcass and its dead body is discarded back into the ocean. More than 100 million sharks are killed every year with fins from up to 73 million sharks used for shark fin soup (a delicacy in the Chinese community). Although shark finning has been illegal since 1994, importing fins from other places without regulations is permitted. In fact, Canadians represent 1.5 to 2% of the global market. This issue was previously brought to the attention of the House of Commons in 2013, but was narrowly defeated at second reading by just five votes. In a 2013 poll, 81% of Canadians supported a ban against shark fin importation.
- A Ban on the Importation of and Sale of Cat and Dog Fur and Source Labelling:
The Bill would follow in line with the European Union, Australia and the United States, by banning the sale of dog and cat fur and require source-fur labelling for companies in Canada. Unfortunately, Canada does not have any restrictions on fur imports, except for endangered species. In fact, the Canadian Textile and Labeling Act’s requirement is that fur products be labeled “fur.” Industry Canada reports that 60% of all fur garments that are imported to Canada come from China with trade worth approximately $12 million annually.
In 2010, the U.S. tightened its ban by requiring that all fur products be labeled for country of origin and species. Unfortunately, Canada has no similar requirements and thus has become a dumping ground for cat and dog fur. Furthermore, dogs and cats used for this purpose have been documented to live in horrific conditions: cramped and filthy cages, killed by strangulation and other inhumane methods of slaughter. Further, their pelts are often a byproduct of the cat and dog meat industry. A Toronto Star investigation in 2012 revealed that cat and dog fur in Canada is used for trim on coats, lining in children’s books, toys, etc. Clear labelling laws and a cat and dog fur ban will help stop the suffering of countless beloved companion animals for fashion.
Fortunately, there has been wide support towards the Bill’s efforts to ban the importation of shark fins and a ban on selling cat and dog fur and source labelling. Most of the concerns are on the meaning of the proposed changes to the Code. Specifically, the Ontario Federation of Anglers and Hunters oppose the Bill and Conservative MP Robert Sopuck has stated this part of the Bill is akin to ‘a Trojan horse devised to advance a radical animal rights agenda.’ Of course, this is far from the truth. In fact, the Bill does not affect hunting, fishing and farming; generally accepted animal-use practices rather it protects animals from negligent abuse and cruelty.
- The Modernization of the Animal Cruelty Offences in the Canadian Criminal Code:
The Bill proposes to amend the Code to close loopholes concerning animal abuse, animal fighting and bestiality, creates a gross negligence offence for animal cruelty and would make it easier to prosecute puppy mill operations in order to prove owners wilfully neglected animals. Further, the Bill would increase the penalty for repeat animal abusers, with a lifetime ban on owning an animal for anyone convicted of animal cruelty for a second time.
These proposed amendments to the Code were originally drafted by the Department of Justice in 1999 in consultation with animal use organizations. On three separate occasions, there was near identical legislation that passed the House at third reading and passed third reading at Senate on one occasion. Similar legislation to update the cruelty provisions of the Code were also introduced to Parliament by Federal Liberals with other bills, however, defeated at Senate.
The most substantial change to the Code would be the introduction of a new offence for people who cause unnecessary suffering to an animal by gross negligence. Currently, it is a crime to cause an animal pain through “willful” neglect. This mental element makes prosecution difficult. The new standard of gross negligence would only require animal cruelty to be caused by conduct that is a marked departure from a reasonable standard of conduct. This is the standard applied to every other criminal negligence offence under the Code.
There are two terms that present the most difficultly in prosecutions for animal cruelty: “wilfully” and “unnecessarily.” Currently, an offence has to be both wilful and cause unnecessary pain, suffering or injury to the animal. There may be sympathy for an animal that has suffered, but the law is only concerned with the conviction of human offenders and will not punish someone who did not intend to harm that animal.
Further, the Bill aims to update the definition of ‘bestiality’ to mean all sexual activity between a human and an animal. This change is necessary upon a recent Supreme Court of Canada decision that held the criminal act must require penetration. In a 6-1 decision, the court upheld an acquittal of a man charged with forcing his stepdaughter to have sexual relations with the family dog. The court said that if Parliament meant to define the crime of bestiality more broadly, it would have done so. However, Justice Abella noted in her dissenting opinion that to limit the charge of bestiality to only sexual intercourse with animals, whose anatomy permits penetration, would be to erode laws that protect all animals from abuse.
Lastly, the Bill creates a new part of the Code, “Offences against animals.” Although the animal cruelty provisions are removed from the property section, there is resistance from those who fear that changing how animals are regarded under the law could jeopardize hunting, fishing, farming and trapping rights. Essentially, the concern is that the welfare of animals will rise to the same moral threshold as for people, however, this shift is a symbolic change that would still recognize animals are property, but different from other types of property. Specifically, it does not change animal’s legal status as property; it recognizes the widespread view that animals deserve legal protection, regardless of whose property they happen to be.
In conclusion, the passage of Bill C-246 would not interfere with accepted animal use practices in Canada. However, those who oppose the Bill are concerned these new offences will result in frivolous charges. For example, methods of slaughter for agriculture to cooking lobster by placing them alive in a boiling pot of water. The new test of “brutally or viciously” forces the court to consider the method of killing chosen and whether there is a lawful excuse. Lawful excuse is not defined in the Bill and neither is “recklessly.” Further, opponents argue that the interpretation of these provisions will be left in the hands of the courts, which will lead to the criminalizing sporting, agricultural, commercial, scientific and religious activities involving animals. However, the Department of Justice, explained these amendments would not impact lawful activities involving animals. The proposed amendments would operate similarly to existing sections of the Code. It is time to update the Code so that it is in line with Canadian values. Recently, an Environics poll revealed that ninety-two per cent of Canadians surveyed agreed the Code should be updated to make it easier to convict people who commit acts of cruelty to animals.
Lastly, the Bill is a positive step to modernize animal protection legislation in Canada and has put animal welfare issues to the forefront of federal politics. Although Prime Minister Trudeau has vocally opposed the passage of the Bill, perhaps due to the pressure from opposition groups such as hunters, anglers, farmers, the fur industry, sport fisherman, etc., other liberal politicians have vocalized their support. Further, animal protection legislation will eventually be updated so that Canadian laws are aligned with Canadian values and we can be proud of the treatment of our fellow animals. It may be that incremental steps should be taken, for example, the shark fin ban and ban on cat fur first, and the more contentious but equally important legislation to update our archaic animal cruelty laws in the Code is next. Although it may take more time, social pressure, and consensus building with the stakeholders, these changes will happen one day. The passage of this Bill would require wide support from members of Parliament and the Senate to become law.
As you take the time to read this article, please consider taking action by educating others, sharing posts of these needed changes on social media, signing petitions such as change.org or creating your own, writing to your local MP, and vocalizing your support for the Bill. You can make a difference. As Erkskine-Smith stated well, ‘Canadians are compassionate people who care about animals and our laws should reflect our values.’ We should applaud MP Erksine-Smith for his ambitious efforts to introduce modern animal protection legislation in Canada.
Suzana Gartner, J.D., LL.M. (ADR)
Gartner & Associates Animal Law
Summer law student
 Members of Parliament spar over animal welfare Bill C-246, online: http://www.cbc.ca/news/canada/saskatoon/animal-welfare-bill-canada-1.3558210. There is doubt the Bill will pass due to contentious issues related to updating the animal cruelty provisions in the Code (discussed later in the paper).
 Supra. Footnote 1
 Graham, David., How Canada gets dog and cat fur from China, online: Toronto Star <https://www.thestar.com/news/world/2012/06/30/how_canada_gets_dog_and_cat_fur_from_china.html>
 Supra. Footnote 2
 Supra. Footnote 1
 R v. W. (D.L.)  SCC 22
 Supra. Footnote 1
Madon, Michelle M., It’s Time to Modernize Animal Rights in Canada with Bill C-246. Online: http://www.huffingtonpost.ca/m-michelle-nadon/animal-rights-canada_b_10774816.html.
 Office of MP Robert Sopuck, Legal Analysis of Bill C-246, online: Keep Canada Fishing <http://www.keepcanadafishing.com/legal-analysis-of-bill-c-246-pmb-by-liberal-mp-nathaniel-erskine-smith/>
 Supra. Footnote 1
 Supra. Footnote 12
Pet law deals with how the law relates to, or impacts, animals and their guardians. Although pet law cases typically involve cats and dogs, this area applies to other companion animals, including birds, rabbits, and horses etc. Additionally, the broader term of “animal law” encompasses companion animals, as well as wildlife, animals used for entertainment, those raised for food and research and animals used in professional settings such as the horse racing industry. With approximately one in every two households in North America sharing their home with a dog or cat, there is no doubt this is an important area of law that is rapidly evolving.
Pet law combines several different legal areas and deals with issues that can affect even the most diligent pet owner. Examples of when an owner might need to retain a pet lawyer include: pet custody disputes, alleged dog bite incidents, veterinary negligence claims, damages claims for the wrongful death or injury to their pet, breeder disputes, wills/estate matters for surviving pets, housing disputes with “no pets” or size restrictions, breed discrimination, and more.
For example, a situation in which pet guardians may require legal assistance is in pet custody disputes of divorcing or separating couples. However, these types of disputes are not restricted to marriage. Courts have dealt with pet custody cases between family members, former partners, boyfriends and girlfriends and even roommates. In these cases, it is important to have legal representation assist in the custody determinations of these beloved companions. In Canada, courts were originally dismissive of such claims however the tides are beginning to change as more pet related cases are litigated.
Mediation of pet disputes is an alternative to litigation that is more cost-effective, less time consuming, and pet mediators will consider the ‘best interest’ of the pet, can craft a pet custody agreement with the parties that leaves them more satisfied and often results in an amicable resolution rather than leave the decision of the pet custody dispute solely to the courts.
Although pets are treated as property in the eyes of the law, most pet owners would agree they are integral members of families. In fact, there is growing recognition of pets as sentient beings rather than property in the law as Quebec recently passed legislation which states that “animals are not things. They are sentient beings and have biological needs.” However, as long as the law in Ontario and other provinces continues to treat pets as property, guardians need to know their legal rights and obligations associated with pet ownership to ensure the well-being and protection of their beloved companions.
Gartner & Associates Animal Law