Why Kids and Dogs are Different, in Law
In a recent pet-ownership case called Bain v Brown, the court adverted to some very forthright legal observations on why, under Canadian law, we view pets differently from children. And it forms part of the reason we do not embrace concepts like “pet custody” in this country.
The case involved two former relationship partners, Katrina and Jennifer, who were in a dispute over two dogs. When they split after five years together, Jennifer held on to the dogs. Katrina now wanted them returned, claiming she was their sole owner.
The dogs had come into the couple’s life when Katrina found them as strays on the side of the road in Alberta, where she had been temporarily working. They decided together to give the dogs a home, and Katrina brought them back to the couple’s home in B.C. The dogs were registered in Katrina’s name. They also had microchips identifying her as the owner, as did the relevant veterinary bills.
Jennifer now disputed Katrina’s sole ownership. While she acknowledged that Katrina paid for the majority of the expenses during their relationship, she said this was because they had very different financial circumstances. They otherwise cared for and catered to the dogs needs on an equal basis. Plus, Jennifer said, she had borne the bulk of the expenses since their split. (But Katrina countered by saying this was merely by default, since Jennifer had kept and withheld the dogs from her since their separation).
The court was asked to resolve the dispute.
It started by noting it was “easy, and often tempting” to use language like “guardianship” or “custody” when dealing with pets in a family law dispute, but under Canadian law they were considered a form of property. It adverted to a Saskatchewan case called Henderson v. Henderson which contained a “useful, and somewhat colourful, summary” of why the courts treat pets and children differently:
[32] The proposition at law that dogs are property and are to be treated as such, and not as children are treated, is borne out by a reasoned and dispassionate consideration of the differences in how we treat dogs and children. A few examples should suffice as illustration. In Canada, we tend not to purchase our children from breeders. In turn, we tend not to breed our children with other humans to ensure good bloodlines, nor do we charge for such services. When our children are seriously ill, we generally do not engage in an economic cost/benefit analysis to see whether the children are to receive medical treatment, receive nothing or even have their lives ended to prevent suffering. When our children act improperly, even seriously and violently so, we generally do not muzzle them or even put them to death for repeated transgressions.
[33] The concepts of dealing humanely with pets while considering them to be property are not mutually exclusive. While as members of society we want to see ourselves as kind, gentle and civilized beings, and wish to cling to the notion that we treat our pets that way, ultimately pets are treated differently than are our children. And so it should be.
Still, when resolving property-based disputes like this one, a fact-specific inquiry was still needed, together with a flexible approach which would ensure the welfare of the animals.
In this case, Katrina was asking for an interim order (meaning one that would apply to the time before a full trial). The court concluded that in light of the significant factual disputes between the parties, it was simply unable to meaningfully assess the relevant factors at this stage. The court therefore declined to grant an order forcing Jennifer to return the dogs to Katrina at this point; instead the former couple would have to wait a few months for the scheduled trial date.
With that said, the court also voiced its disapproval of Jennifer’s decision to withhold the dogs from Katrina completely. It ordered her to give Katrina access to them on a court-set schedule, involving up to six hours one calendar day each month. Jennifer was also ordered to facilitate this.
The court ended its judgment with these cautionary words:
[22] Before concluding, I will make one further observation. In keeping with the principle that pets are a form of property, the trial judge will have a range of remedies available to them consistent with how the courts deal with disputes about other forms of property. While it is possible that the court might find one or the other of the parties to be the sole owner, it is equally possible, if not more likely, that the court will find the dogs to be family property. In cases of disputed family property, it is not uncommon for the court to make an order requiring the property to be divided equally or even sold.
[23] The parties are the ones who are presently in control of what happens to the dogs, including who gets them when and for how long. If they insist on taking this matter to trial, they should prepare themselves for an outcome that leaves them both unhappy.
For the full text of the decisions, see:
Bain v. Brown, 2022 BCSC 915
Henderson v. Henderson, 2016 SKQB 282
