“In a more perfect world there would be special laws recognizing pets as living, feeling creatures  with rights to be looked after by those who best meet their needs or interests, and  there would be specialized accessible courts to determine the ‘best interest of the dog,’ as there are for children in the family courts…In this less perfect world, there is the small  claims court operating on principles of property law, treating pets as ‘chattels’ not very  different –legally speaking—from the family car.”1

In the recent Halifax case of Kemp v. Osmond, a small claims court adjudicator, Eric Slone, considered a dog’s choice to stay with her owner, in his ruling which awarded custody of a nine-year-old, mixed-breed dog named Lily. The parties were a couple, Sally Kemp and Laurie Osmond, who owned two dogs. Lily, the dog at issue in this case, was purchased by Kemp, prior to  the couple eventually moving in together. When the couple’s relationship ended, they traded Lily back and forth for years. During this time, issues arose about how to handle the health care of Lily, and they increasingly argued about custody. One day, Osmond, tried to pick up Lily  from Kemp’s house and an argument ensued. Osmond called Lily to his car, she eagerly obliged, he drove away and refused to return her. This action is what led to this case coming before the small claims court.

Current Canadian law regards animals as property, so Slone had to decide who had the stronger claim to ownership. Some factors that a  Court considers when determining the ownership of a dog is: Who purchased the dog? Under whose name is the dog registered? Who trained the dog? Who paid for all the expenses (e.g. vet, food, toys). At first, it may seem as if Kemp  had a stronger claim because she purchased Lily prior to them living together. But as Slone explains in his decision, the ownership changed over time. Over the years, Osmond paid thousands of dollars in veterinary bills for Lily, took responsibility of her nutritional needs and became her main caretaker. It was also the view of Slone that Kemp was careless in leaving Lily outside and unleashed on two known occasions. Osmond called Lily to his car at two different times and she went. This eroded Kemp’s claim of ownership because it showed a disconnected bond and lack of responsibility for Lily. In the end, Osmond had the better right to ownership. Slone attributes this final ruling as being made by Lily herself, when she jumped into his car twice. Slone made a point to focus on the nature of a human’s relationship with their pet and contemplated the interests of Lily. This was a fascinating analysis because it was a novel attempt at recognizing pets more as objects of moral concern, rather than seeing them just as their legal classification of property. The decision of who gets custody of a pet should not be discerned by who has a stronger claim to ownership, but rather the best interest of the animal.

Slone mentions that he has ruled on other similar cases and is once again, forced to rule on who gets custody of a pet. This is because there is nowhere else for people to take these disputes. Slone then considers the usefulness of a hypothetical specialized accessible court, to determine the best interest of pets. However, the logistics and details of such courts are not explained. Although access to courts would help shift the focus of the laws from ownership to that of the best interest of the animal, changes in the laws themselves would be a better place to start.

In Canada, pets are considered personal property. The provinces have jurisdiction over animals as part of their power to regulate property laws. Meanwhile, the federal government uses its criminal law power to create offences in the Criminal Code, which categorizes cruelty to animals as “crimes against property.” Although the statutory offences of cruelty to animals have remained stagnant for over a century, their enactment conceded that animals deserve some  sort of legal protection. The controversial question nowadays is what is their appropriate legal status under the law? Arguably, the ability to protect the best interest of animals will continue to be hindered, so long as they are property. This is because the property status of animals will always rise above their welfare, because there is a presumption in the law that people are superior to animals and entitled to use them as a means to their ends.

Unfortunately, animals cannot be both liberated and owned at the same time. There needs to be some middle ground where society can acknowledge that animals are not morally equivalent to tables and chairs, but also not grant them something as supreme as human rights. This  could be a new class of nonhuman rights where animals have more rights than they currently do, but legally are considered something like children. People who choose to have pets  would have a legal responsibility to not mistreat them and to provide a basic level of care. In the same vein as the ruling in Kemp v. Osmond, society needs to make a better determination as to what is our appropriate relationship to pets and all animals. The treatment of  animals must be written in the language of rights, with them being recognized as beings of moral concern with the right to life, protection from injury and suffering and the right to live according to their nature. In other words, animals must be legally recognized as sentient. Merriam-Webster defines the term “sentient” as, “responsive to or conscious of sense impressions;  aware; finely sensitive in perception or feeling.”2

The classification of animals as sentient already exists in some jurisdictions in our country and around the world. In these jurisdictions, there has been a shift from ownership of animals as property, to humans standing in a role of guardian. San Francisco has already declared that pets are not property and that the people with whom they live are not their owners, but their guardians, and are not entitled to dispose of them as they see fit.3 Alaska has also looked to the best interest of pets involved in divorce matters in the newly amended, Amendment HB 147.4 This law is an embodiment of Slone’s vision for the law to move away from placing pets with whomever is deemed to be the more rightful legal owner. The European Union has also reached an agreement that all animals are to be protected and respected as sentient.5

In Canada, Quebec passed Bill 54 which also defines animals as sentient.6 This legislation comes from a province with some of the most flexible animal welfare laws and has long been considered the ‘puppy-mill capital’ of Canada. In contrast, Ontario has some of the strongest animal welfare laws in the country (which regrettably, still is not saying much). This brings hope that our province will follow suit and adopt views like these jurisdictions and Slone, and enact laws affording animals the basic right to be considered sentient. A sentient status will be a move in the right direction away from Courts deciding legal ownership, but rather the best interest of the animal.

[1] Kemp v. Osmond, 2017 NSSM 25 at para 3, 4

[2] Merriam-Webster, definition of “sentient,” accessed from: https://www.merriam-webster.com/dictionary/sentient

[3] National Post, The Sentient Debate: Animal Legal Rights At Centre Of Recent Court Cases, accessed from: http://nationalpost.com/news/canada/the-sentient-debate-animal-legal-rights-at-centre-of-recent-court-cases/wcm/c7963bb3-b78e-4dc7-8ce8-6d580cb748b2

[4] Animal Legal Defense Fund, Alaska Legislature Becomes First to Require Consideration of Animals’ Interests in Custody Cases, accessed from: http://aldf.org/blog/alaska-legislature-becomes-first-to-require-consideration-of-animals-interests-in-custody-cases

[5] European Commission, Animal Welfare, accessed from:
https://ec.europa.eu/food/animals/welfare_en

[6] Assemblee Nationale du Quebec, Bill 54: An Act to improve the legal situation of animals, accessed from: http://www.assnat.qc.ca/en/travaux-parlementaires/projets-loi/projet-loi-54-41-1.html

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