Court Cases & Orders

Should Child Custody Principles Be Applied to Former Couple’s Dog?

Written by Russell Alexander / (905) 655-6335

About five years ago, I first wrote about divorces that include “pet custody” disputes. These feature animal-loving former couples who end fighting in court over custody and ownership of their once-shared pets. Often the first step in such cases is for the court to set the parties’ expectations straight on a threshold issue, namely whether either of them has the right to “custody” of a pet (like they would have with children from the relationship), or whether pets are merely considered family property subject to division, like their household furniture or other assets would be.

In the years since that first article, nothing has changed. Pet-lovers are still very fond of, or downright passionate about, their pets. Couples who split up still squabble over them. But from a legal standpoint, the law is the same then as it was now: Canadian law does not regard pets as a member of the family, and child custody principles simply do not apply to these kinds of disputes.

In other words, under Canadian Family Law, pets are simply possessions.

This was reinforced in a recent Saskatchewan decision, involving a man and woman who had shared two dogs while living together. The man wanted to keep one dog and was willing to allow the woman to choose which one. The woman wanted both dogs. Neither of them would budge, and the matter went before a court.

On the preliminary question of whether the dogs were to be treated as property, the court made no bones about it (pun intended):

Dogs are wonderful creatures. They are often highly intelligent, sensitive and active, and are our constant and faithful companions. Many dogs are treated as members of the family with whom they live.

But after all is said and done, a dog is a dog. At law it is property, a domesticated animal that is owned. At law it enjoys no familial rights.

The court went on:

I say without reservation that the prospect of treating pets as children would be treated holds absolutely no attraction for me. I say this cognizant that many dog owners, perhaps most of them, choose to treat the family dog not as property but as family. Certainly that is what these parties did. But that choice does not alter the law that pets are property. My present task is not to act with emotion or to validate the personal perspective of pet owners within the legal context. Rather, it is to interpret and then apply the law. And for legal purposes, there can be no doubt: Dogs are property.

Having made its legal approach clear, the court ultimately declined to make any interim order respecting the dogs, because the couple certainly had other personal property that would be dealt with and divided at a later trial. The court explained:

I strongly suspect these parties had other personal property, including household goods. Am I to make an order that one party have interim possession of (for example) the family butter knives but, due to a deep attachment to both butter and those knives, order that the other party has limited access to those knives for 1.5 hours per week to butter his or her toast? A somewhat ridiculous example, to be sure, but one that is raised in response to what I see as a somewhat ridiculous application.

And if that was not clear enough, the court added the following admonition to the particular couple, and to the broader public as well:

In a justice system that is incredibly busy, where delay has virtually become systemic, where there are cases involving child welfare and family matters that wait months for adjudication, these parties have chosen to throw this dispute into the mix. I am sure that to them, this is the most important matter. But it must be kept in perspective and measured against other matters, many of which inarguably are of more importance. … To consume scarce judicial resources with this matter is wasteful. In my view, such applications should be discouraged.

Do you think the court was correct? Should Canadian law recognize and address pet custody issues?

For the full text of the decision, see:

Henderson v Henderson, 2016 SKQB 282 (CanLII)


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About the author

Russell Alexander

Russell Alexander is the Founder & Senior Partner of Russell Alexander Collaborative Family Lawyers.