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Creativity called for in dog, cat, custody battles | Victoria Shroff

Wednesday, May 27, 2020 @ 2:10 PM | By Victoria Shroff

Victoria Shroff %>
Victoria Shroff
Pet custody inquiries at my downtown Vancouver animal law firm are up and I suspect the upward trend will continue as we emerge from COVID-19. There’s been a whole lot of forced confinement due to the epidemic and news reports indicate that a surge in divorce filings are anticipated. Splitting up includes the family pet.

What happens to the family pet upon dissolution of the human relationship? Who gets to keep the family pet after the split? Can sharing of the pet, joint custody/joint access/intermittent access/sharing of the pet in some form, be ordered by courts? Do court decisions display a particular sympathy or understanding that a pet is a family member?

I’ve been taking on “pet custody” cases since 2000 when I first started practising animal law in Vancouver. Over the years, I have advised on pet custody/possession/access cases coast to coast in Canada. There are distinct similarities in the case law patterns, the main one being that people value their pet akin to a human family member. As an animal lawyer I call these cases “pet custody” cases but most courts are not comfortable with this term, nor to process these cases as such.

Courts usually see these cases as best ownership claims because animals are held to be property under the law. However, though animals are labelled property under the law, they can and sometimes are, looked upon by courts as sentient property. There is room for creativity.

Many courts apply a straightforward formula of whoever owns the pet, gets to keep the pet, but it depends. Pet custody or pet ownership cases are a bit of a hodgepodge depending on court and province, but courts in several regions of Canada going far back as far as 40 years ago have found jurisdiction on which party should get to keep the pet, joint custody/possession/intermittent access.

Some courts most certainly express some recognition that a pet is akin to or is a family member. (Please see Animals: Family at home, property at court.)

Several years ago, when I was first invited to come on board to teach animal law at UBC’s Allard School of Law, I requested that we add pet custody as a vital new section to our curriculum to reflect the importance of the family pet upon dissolution of human relationships. One of the cases we discussed then and now is the 1980 Ontario case of Rogers v. Rogers [1980] O.J. No. 2229, where the divorcing couple fought tooth and claw over possession/custody/ownership of their beloved dog, Daman.

Somewhat progressively for the times, the court in Rogers provided a sort of sharing to allow Daman to remain part of both ex-spouses’ lives. The court stated that the dog’s feelings needed to be accounted for, canvassed best interests and affection in determining possession or access. The Rogers case aptly makes the point that joint possession (ostensibly “joint custody”) of an animal in one form or another and the factoring of “best interests” of the family pet is possible.

Over the 40 years since it was decided, Rogers has been cited in pet custody cases including a 2012, Ontario pet custody case about a Chihuahua called Princess and her trio of puppies. In MacLean-Beaudet v. Belanger [2012] O.J. No. 497, the court quoted from the Rogers decision stating at paragraph 2:

 ... “[t]his court has jurisdiction in any action for the recovery of possession of personal property ... . In Rogers v. Rogers, the court addressed the issue of vesting ownership and permanent possession of a dog in a matrimonial dispute. The court found that the main consideration in determining the issue is not the best interest of the dog but the preservation of the dog as personal property ‘having regard to its breed, its characteristics and traits, the training received, the use the spouses made of it and the manner in which each found enjoyment, pleasure or recreation from it.’ ”

The court, however, emphasized that the best interest of the dog is a consideration. On this point, the court stated: “In holding that the best interest of the dog is not the prime consideration, I am mindful that a dog has feelings, is capable of affection, needs to be shown affection and that its affection can be alienated; that its needs must be provided for and that, generally, it must be treated humanely and with all due care and attention to its needs and that these factors are to be considered as well in determining the right to possession or access thereto.” (Rogers, para. 28)

Gauvin v. Schaeffer [2003] S.J. No. 117 is one of my favourite pet custody cases and one I mention whenever I teach pet custody. It’s a laudable case for making an indent into the idea of thinking of animals beyond respirating property. Back in April 2003 Canadian newspaper headlines read variations such as this: “Court orders couple share custody of dog,” in the wake of a Saskatchewan court ordering joint custody of a pet for a couple.

The Gauvin case showcased an understanding of dogs, jurisdiction and the “best interests” of the family pet. The court even went so far as to say that the man and woman were “members of his pack” directing that they must share their “handsome white husky,” Shikydoe, equally. The former couple would share Shikydoe week on week off for the rest of his canine life. The court heartwarmingly referred to the intrinsic nature of the relationship between a dog and his humans. The judge empathetically stated about Shikydoe:

Para 13. “Even if his value of $150.00 could be claimed as exempt from distribution under s. 23, his real value is much higher and founded in the intrinsic nature of the relationship which he has formed with the other members of his pack, the plaintiff and the defendant, over his lifetime … the fair and equitable order is that the possession of Shikydoe be shared equally by the plaintiff and by the defendant. That regime is in accordance with the way that Shikydoe was treated by the plaintiff and the defendant during their cohabitation, their marriage, and most of their separation.”

Joint custody of family pet cases although not new in many provinces, remain outliers — at the moment. Cases like Gauvin show how Canadian courts sometimes can and have claimed jurisdiction and also apply the best interests of the animal in pet custody cases.

In part two of pet custody, we will look at Canada’s most important pet custody case from the top court in Newfoundland and Labrador in 2018 and some more provincial cases going back several years to the present.

V. Victoria Shroff is one of the first and longest serving animal law practitioners in Canada. She has been practising animal law civil litigation for 20 years in Vancouver at Shroff and Associates (604-891-0209). She is also erstwhile adjunct professor of law at the Peter Allard School of Law at UBC and has lectured internationally from India to Galiano Island and is frequently interviewed by media. She was recently honoured by the International Society for Animal Rights with a SEEDS award for her animal law work. Follow her at @shroffanimallaw or on LinkedIn.

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