By Suzana Gartner & Alyson Groll

Although many Canadians love their animal companions as members of their family, often treating them like any child in the household, Canadian jurisprudence views animals as property. As a result, our companion animals can be considered and treated as nothing more than a set of steak knives before the courts when the custody of those animals is under dispute. As an animal lover, this point of view can seem utterly senseless. Unfortunately, little has developed in this area of the law even though companion animals are highly valued in our society as beings that bring us endless joy and often a sense of safety and stability. The province of Quebec is the only province to have made a legislative change in this area by passing Bill 54[1], which changed the status of animals from mere personal property to sentient beings. 

           Outside of the province of Quebec, because of the current legal view of animals as property, the court system is often not the optimal forum to address custody disputes over pets due to a breakdown of a relationship. Under the current laws, a judge can simply rule that the purchaser of the animal is the owner and simply compensate the other party monetarily. This was the result in Baker v Harmina (2018),[2] a case that was taken to the Newfoundland and Labrador Court of Appeal where the majority found that the lower court rightfully applied the law in that the ownership of an animal belongs to the purchaser of the animal despite who cared for the pet. Furthermore, many courts at both the trial and appeal level see custody applications for pets as a waste of the court’s time and that they do not have jurisdiction to make orders regarding pets similar to that of a custody order.[3] 

           There has been some little progress in this area in that some judges may be willing to view animals as more than mere property. In fact, the dissenting judge in Baker articulated:

           “Ownership of a dog is more complicated to decide than, say, a car, or a piece of furniture, for as my colleague observes, it is not as though animate property, like a relationships with their dogs and it cannot be seriously argued otherwise…. I am of the view that the ownership of Mya involved much more than a determination of who paid for her at the time of purchase. The ownership of a dog is a more complex “.      

           Despite this positive step, as it stands currently, the courts continue to apply the notion that pets are property in the eyes of the law, leaving many loyal pet owners upset and frustrated at the lack of resonance in mindset when navigating the court system to resolve pet disputes. Just as children’s’ best interests must be considered in any custody situation, an animal’s best interests need also to be taken into account. Since the courts are, in most cases, unwilling to do this, mediation is often the optimal and most useful forum to have the kind of conversation and negotiations most pet owners desire to have concerning where their beloved animals end up. At Gartner & Associates Animal Law, our staff exclusively use a mediated approach to resolving legal disputes involving our animal companions. We successfully resolve our client’s pet custody and ownership disputes with our tailored negotiation service. With experience resolving animal law disputes using a mediated approach, the staff at Gartner & Associates Animal Law can assist you by providing a forum where both pet parents’ best interests, as well as your pet’s best interests, are the priority in determining an amicable decision regarding your companion animal’s future. Our staff will work with you to ensure that your animal companion is treated like a member of your family.

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

 [2] Baker v Harmina, 2018 NLCA 15

[3] https://lichtblaulaw.com/advice/who-gets-custody-of-a-pet-when-a-couple-separates/

Services

Animal Law has many aspects. The links below lead to discussions of common issues and of the expertise Gartner & Associates can offer you if you are facing such issues.

Articles / Blogs

Here’s what we have been thinking about lately.