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Are “Pet Trusts” the Future of Canadian Law?

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Are “Pet Trusts” the Future of Canadian Law?

A little while ago I wrote about a recent B.C. pet-custody case called Brown v. Larochelle.  This case falls in neatly with other Canadian family law decisions that hold, almost universally, that in a separation or divorce pets are considered “property”, and are not subject to any sort of order that grants either party “custody”.

The Brown decision refers to an Ontario case, Coulthard v. Lawrence, in which the court was asked to settle a similar dispute between a separated couple over their two shared dogs, except in that scenario the Small Claims action was framed not as a “custody” battle, but rather a request to have the court decide which of the former partners gets the benefit of an order for possession of the beloved pets.

In making its decision, the court referred to a few scholarly articles and reputable studies, that set out some of the statistics relating to pet ownership in Canada, as it informs the resolution of such legal disputes:

It is clear from everything both parties have said, and what is in Ms. Coulthard’s affidavit, that the dogs were very much part of the household before the July 2011 termination of cohabitation, and then even after the Labour Day 2011 moving out of the Plaintiff’s house by Mr. Lawrence.

I explained to the parties that I was going to make reference to a publication, the publication really supports what both of them feel is the status of these dogs in their household. It’s a 2010 publication with the humourous title, “Fat Cats and Lucky Dogs”. It’s by two lawyers, one a Toronto lawyer, Barry Seltzer, and the second by a professor of Law at Texas Tech University School of Law, Professor Gerry Beyer. The book has received recognition internationally.

The authors at page 2 of the actual portion of the book, as opposed to the introduction, refer to a 2001 IPSOS-Reid study, Canadian study, it was called a pet ownership study, the formal name is “Paws and Claws”. And I quote from the text, but the text in turn is quoting from the IPSOS-Reid research: “Eight in ten of the pet owners … (83%) consider their pet to be a family member; only 15 percent said they love their pet as a pet rather than as a family member. This perception of the pet as family translates into ‘parental’ behavior for many pet owners: seven in ten (69%) pet owners allow their pets to sleep on their beds and six in ten have their pet’s pictures in their wallets or on display with other family photos. Almost all pet owners (98%) admit to talking to their pets.”

The court went on to quote text passages referring to the legal concept of “pet trusts”, under which money his held in trust to be used to provide for the care of any pets alive during the lifetime of the person setting up the trust.  Although the concept is not widely-recognized in Canada, it does have some acceptance in U.S. law.  As the court explained:

I am referring to a statement made in the text, in the introduction. As I say, the book was published in 2010. And at XIII of the introduction, the coauthors write: “At the time of writing…” and this is 2010, “…about 40 states plus the District of Columbia recognize pet trusts in some form. As the demand for pet protection increases, however, other states will come on board.”

The status or recognition in a legal form of pets is indicated in appendix G of this book. It refers to what is known as the National Conference of Commissioners on Uniform State Laws. Lawyers who study law learn of the continuing ongoing basis in the American law of what’s called uniform legislation and uniform pronouncements of law. So at page 142 of the book it starts out, the heading is “Uniform Statutes on Pet Trusts”. “In the United States the National Conference of Commissioners on Uniform State Laws revised the country’s Uniform Probate Code in 1990. More than 300 lawyers, judges and law professors, selected by state government, make up the conference. Its main task is to propose legal statutes for uniform and model laws in specific subjects and help state legislatures put the statutes into law.”

The text then goes on to quote from sample codes drafted by the conference in 1990 and amended in 1993 and it says that: “Approximately 10 states have enacted…” the particular provisions, which they then quote.

And then page 143, under a section headed “Trusts for Care of Animals”, the authors point out: “Likewise, the section 408 of the Uniform Trust Code completed in 2000 provides that a ‘trust may be created to provide for the care of an animal alive during the settlor’s lifetime.’ Approximately twenty states (See Appendix H) have enacted this Code which contains the following pet trust provision…”

I’m not quoting what the actual uniform code trust provisions are, but simply to indicate how advanced American law has gone, to allow for the protection of animals, to elevate them in a way that inanimate personal property has no protection.

Although the court in Coulthard v. Lawrence does not specifically adopt the U.S. concept of pet trusts into the Ontario-based scenario on which it was asked to rule, it does consider the duality of the property-vs.-custody dichotomy:

Part of what I said to Mr. Lawrence during his very able submissions was that when he upset the, what I called, scales of balance by after several months revoking what had been the arrangement where there was the equal sharing of the dogs, he had actually tipped the scales against him by resorting to self-help, and that he did so because, in his understanding, he owned the dogs and he was better suited. I put it out to him that he was walking both sides of the street, that he wanted to consider the dogs as members of the household, as fully as the pet owners referred to in Mr. Seltzer and Professor Beyers text or book have stated is the practice of most pet owners, they’re not considered property, they’re considered family members, but what he was doing was depriving the dogs of Ms. Coulthard’s role in their lives.

To recognize pet trusts is an interesting approach to take, and one that arguably adds a practical approach to a difficult legal conundrum, given the unique nature and role of pets in most relationships and families.

For my pet-loving and non-pet-owning readers alike:  What are your thoughts?

For the full text of the decisions, see:

Coulthard v. Lawrence, 2011 CarswellOnt 15952, [2011] O.J. No. 6207

Brown v. Larochelle

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at RussellAlexander.com

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