By: Suzana Gartner, Kira Berkeley, and Edith Barabash

 

In our society, companion animals are often viewed as members of our families and hold a special place in our hearts. When a relationship breaks down, the last thing we want is to lose access to our beloved pet(s). Under the Canadian law, animals are currently viewed as personal property. Consequently, when divorce cases arise, household animals are divided up or monetarily compensated for their purchase value like furniture. We know that a majority of pet owners, “guardians”, would not be satisfied with such results. That’s why when these situations occur, Gartner & Associates recommends mediation as an effective strategy to resolve pet custody disputes. We view your pets as more than just property and the flexibility that mediation offers can result in quicker, more satisfying results for the parties involved and can be less costly and time consuming than bringing an action in court. Unfortunately, there are circumstances when court action is necessary, for example for gaining full ownership of your companion animal or when an ex-spouse is not agreeable to resolving the pet custody issue amicably.

In pet custody cases, the Canadian law has only made incremental progress on moving away from viewing companion animals as property. In 2016, a Saskatchewan judgement set out that pet custody disputes were a waste of the court’s time and resources.[1] In 2018, a British Columbia tribunal took a small step forward, concluding that a dog is a “special type of property”, and in resolving the matter they considered whether return to a particular owner would result in abuse or neglect.[2] However, factors that are given the most weight are primarily who signed the adoption papers and who was involved in the adoption process.[3] In another 2018 case, a Newfoundland judgement made its way to the Court of Appeal, but the majority outcome decided a dog named Mya should belong to the person who purchased her, rather than the person who took care of her.[4] However, in this judgement Justice Lois Hoegg wrote a powerful dissent, articulating that animals are not akin to property and ownership should not be determined solely on who purchased the [animal].[5] While Justice Hoegg’s view is not a legally enforceable approach, the dissent is a stepping stone towards change on the way companion animals are viewed under the eyes of the law.

Despite these steps forward, Canadian courts still primarily view animals as mere property. Some of the ways to establish ownership of a pet is by showing that the pet owner is listed at the veterinary office, by seeing who is listed as the owner on the city’s pet license, or by looking at the adoption/breeder certificates. Ownership can also be established by showing that the animal was a gift. In Michiels v Kinnear, it was stated that a gift must be a “voluntary and deliberate act by a person mentally competent to know, and who did know, the nature and effect of the deed, and that it was not the result of undue influence”.[6]

In contrast, parts of the United States have shown more progressive changes on the pet custody issue. The Animal Legal Defence Fund, an American organization that uses the legal system to protect animals from harm, supports animal protection legislation, and works to advance the field of animal law[7], has been intervening in pet custody disputes to represent animals’ best interests.[8] Certain cases have judgements that considered the animal’s best interests, such as Raymond v Lachmann. In this case, the judgement determined that after two roommates split up, their cat named Lovely would be better off living with Lachmann, despite Raymond being the original purchaser of the cat.[9]  

Additionally, California has taken a huge step forward by legislating pet custody cases to consider the best interest of animals. Last year, Assembly Bill 2274 was passed, amending California’s Family Code to add a specific section addressing pet custody issues.[10]  The Code now allows the court to consider the care offered to the animal to assign sole or joint ownership.[11] The Code defines care to include (but not limited to) preventing acts of cruelty or harm, and providing food, water, veterinary care, and shelter to the pet.[12] This change is an exciting milestone in the area of pet custody, since the law breaks away from viewing pets as property in the custody context. However, the law may not go far enough as the legislation states these considerations arise “at the request of a party to proceedings for dissolution of marriage or for legal separation of the parties.”[13] The wording may hinder the application of the law to pets in shared residences apart from marriage, such as other family members, common law relationships or roommates.  

At Gartner & Associates, we believe that the animal’s best interests must be considered when determining who and where a pet will live when custody issues arise. We agree with Justice Lois Hoegg’s dissent and support California’s new law allowing the animals best interest to be considered in court. Since the Canadian law does not reflect this view when handling pet custody cases, Gartner & Associates aims to resolve dog and cat custody issues through a more tailored approach using mediation, where we can ensure the best interests of your animal companions are considered. If co-custody best fits your situation, we can craft a companion co-ownership agreement. In cases where co-ownership would not be in the animal’s best interest, we can work to gain full ownership for a beloved pet. If you would like to protect yourself and your companion animal from the stress of pet custody issues arising in the future in the event of a relationship breakdown, we can draft a pet pre-nuptial agreement.

For more information or if you are experiencing pet custody concerns, please contact our office and we can schedule an appointment   Gartner & Associates can answer your legal questions. They can be reached at (416) 836-9971 or by email at reception@animallawyers.ca. With many years of experience specializing in pet-custody issues and experience in mediations, the staff at Gartner & Associates have successfully reached a resolution for many clients and crafted a successful solution that takes into consideration your pet’s best interests.

[1] Henderson v Henderson, 2016 SKQB 282.

[2] Eggberry v. Horn et al, 2018 BCCRT 224.

[3] Ibid.

[4] Baker v Harmina, 2018 NLCA 15.

[5] Ibid.

[6] 2011 ONSC 3826 at para 128.

[7] Animal Legal Defence Fund. “The Legal Voice for All Animals”, www.aldf.org/

[8] Newell, Barbara, “Animal Custody Disputes: A Growing Crack in the Legal Thinghood of Nonhuman Animals” (2000) 6 Animal L 179.

[9] Raymond v Lachmann, 695 NYS (2d) 308 (NY App Div 1999).

[10] US, Bill AB2274, An act to add Section 2605 to the Family Code, Relating to Division of Community Property, Cal, 2018.

[11] Family Code, FAM § 2605.

[12]  Ibid.

[13] Ibid.

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