Dog Law Custody Ownership

Your family pet is likely viewed as that: family. It seems absurd to consider your precious pet as a piece of property, and for a good reason — a pet is something you share an emotional bond with, something irreplaceable. However, Canada still legally considers pets to be property. In a divorce, the animal goes to whoever has the better property claim. The person who walks away with the pet after a divorce is often the partner who either brought the pet into the relationship, bought the pet, or the partner to whom it was gifted.[1] The pet may end up being taken from its primary care-giver, a loving guardian because they are no longer able to see their pet. This concept seems counterintuitive. If pets are considered family members, should we not consider their well-being when deciding where they go after their owners separate?

Canada is not the only country that legally views animals as property. Still, many countries do have more progressive models who show us what a more compassionate legal framework for animals would be. In resolving pet custody disputes, Israel and Switzerland use a ‘best interests of the animal’ style test.[2] They consider which home will provide the animal with the best care. In the United States, “pet trusts” are being increasingly recognized by the law. These are sums of money typically set up by the guardian of a pet, which are to be used to provide care for a pet after the owner’s death.[3] As well, California, Alaska, and Illinois have all recently passed laws which allow judges to consider what is in the best interest of the animal when deciding pet custody cases. Factors that can be considered range from who regularly feeds and walks the dog to which situation will allow for better socialization.[4] The remaining states will likely pass similar laws within the next decade. It is becoming increasingly difficult for legislators and judges to ignore society’s view of pets as members of the family.

Canada has had some recent exciting progressions in animal and pet custody law. In 2015, Quebec passed a new law treating animals as sentient beings rather than inanimate objects in an attempt to improve animal welfare.[5] Regarding pet custody cases in Canada, some judges have treated them as a waste of time while other judges show remorse in their following of strict property-based rules. However, the 2017 British Columbia case Brown v. Larochelle handled a dog’s custody between two partners by balancing the law and the dog’s best interests. The judge considered that the breed of dog in question was very loyal, and based on this the judgment held that the dog should go with the owner it had cemented its bond with.[6] However, the judge was only able to do this because the dog was jointly-owned from the start. These developments may seem small, but they show us that the law is starting to catch up with Canada’s values.

In the meantime, there are ways you can ensure your pet will be given the proper care should a custody dispute arise. Some lawyers advocate the use of a ‘petnup’ to avoid custody disputes when the relationship dissolves, arranging matters like custody and pet support guidelines in advance.[7] As well, Gartner & Associates specializes in mediation and dispute resolution. We have successfully mediated many pet custody disputes. Gartner & Associates will work with you to ensure that your pet is treated as a member of your family.

[1] Brown v. Larochelle, [2017 ] B.C.J. No. 758.

[2] Deborah Rook, “Who Gets Charlie? The Emergence of Pet Custody Disputes in Family Law: Adapting Theoretical Tools from Child Law”, International Journal of Law, Policy and the Family, (August 2019), online: <https://academic.oup.com/lawfam/article/28/2/177/1019735>.

[3] Russel Alexander, “Are “Pet Trusts” the Future of Canadian Law?”, FamilyLLB (5 September 2017), online: <https://canliiconnects.org/fr/commentaires/54635>.

[4] Rook, “Who Gets Charlie?”.

[5] Civil Code of Québec, S.Q. 1991, c. 64, s. 898.1.

[6] Brown.

[7] Steven Petrow, “After a Divorce, Who Gets the Dog?”, The New York Times (3 October 2019), online: <https://www.nytimes.com/2019/10/03/opinion/sunday/dog-divorce.html>.

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