@suzanagartner
The question of choosing between a coffee-maker and your beloved pet seems to have an absurdly easy answer. Of course, you would choose your pet: they are a member of your family and are irreplaceable. Unfortunately, current Canadian law disagrees with you. In the eyes of the law, pets are nothing more than a piece of property. A pet’s status as property has some wide-reaching implications, including who gets possession following a divorce. Because the family pet is property, it often goes to who it belonged to before, who bought it, or who it was gifted to.[1] The well-being of the pet is not taken into account, just like you would not take into account the well-being of a couch or a painting. This is a sad reality. Fortunately, it is not like this in every part of the world, and based on recent developments both in and outside of Canada, exciting changes may be on the horizon.
Rather than using a strict property approach to resolve pet custody disputes, as Canada does, countries like Switzerland and Israel have adopted an approach that takes the best interests of the pet itself into account.[2] While many states in the USA have laws similar to our own, California, Alaska, and Illinois all recently passed laws which allow judges to consider the well-being of the pet in pet custody disputes.[3] These developments were recent, and there will likely be more to follow, but a 1999 New York case, Raymond v. Lachman, shows us that public opinion has cared about an animal’s well-being for quite some time. This case involved the custody of an elderly cat between two roommates. The judge decided to allow the cat to stay with the person it was currently living with, even though this went against traditional property rules. This was because the cat was elderly, and the judge believed that such a significant upheaval in lifestyle would cause stress for the animal. It was best for the health and happiness of the cat that it stays where it was.[4]
Canada, for the most part, still upholds archaic property rules in pet custody disputes. However, there have been some recent developments which give us hope for the future.[5] In 2015, Quebec passed a bill that finally acknowledged animals as sentient beings rather than inanimate objects in an attempt to improve animal welfare. The 2017 British Columbia pet custody case Brown v. Larochelle is especially promising. In this case, the two owners had rescued a dog while in South Korea. The judge acknowledged that usually, the dog would have to go to the partner with the better property claim. However, because the owners acquired their dog Luna jointly, traditional property rules went aside, and the court was able to act in the best interests of the owners and the animal. Luna was a Jindo — a dog characterized by its fierce loyalty. Because the husband had recently been in the sole custody of Luna, Luna’s loyalty had been cemented to him, and she was to remain with him.[6] These legal decisions are exciting, but Canada’s current laws still do not fully reflect society’s values around animal ownership.
There is a reason that the law should consider factors like the well-being of the animal in drafting legislation and deciding cases. Animals are sentient creatures with physical and emotional needs just like us. Pets are often considered to be members of the family. Pets provide love to us and make homes that much brighter. An animal’s status in the law should reflect how society views them, and we hope that this future is not as distant as it may seem.
[1] Brown v. Larochelle, [2017 ] B.C.J. No. 758.
[2] Deborah Rook, “Who Gets Charlie? The Emergence of Pet Custody Disputes in Family Law: Adapting Theoretical Tools from Child Law”, International Journal of Law, Policy and the Family, (August 2019), online: <https://academic.oup.com/lawfam/article/28/2/177/1019735>.
[3] Ibid.
[4] Ibid.
[5] Civil Code of Québec, S.Q. 1991, c. 64, s. 898.1.
[6] Brown.