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[1]. 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[2]. 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[3]. 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).[4] 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[5].” 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.

[1] Companion Animal Health. (2016). Retrieved January 16, 2017, from http://www.cahi-icsa.ca/companion-animal-health/

[2] Bill 54: An Act to Improve the Legal Situation of Animals. 1st Sess, 41st Leg, Quebec, 2015

[3] 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

[4] Henderson v Henderson (Henderson), 2016 SKQB 282, 2016 CarswellSask 579, accessed from Westlaw Canada, para 44.

[5] 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

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