Pets: Children or Property?

Pets are our much loved and valued companions, most often considered and treated as members of our family.  What happens to our precious pets on relationship breakdown?  How are disputes regarding our dearest pets resolved at law upon separation?  Are pets treated as children or as property?  In light of the foregoing and our deep emotional connection to pets, it would seem to make sense that they should be treated like children and the inquiry should focus on a determination of their best interests, rather than on entitlement to ownership, division and/or distribution.

Justice Richard Danyluk of the Saskatchewan Court of King’s Bench recently canvassed this interesting issue in the case of Henderson v. Henderson, 2016 SKQB 282 (CanLII), which pertained to interim possession of dogs.  In this case, Justice Danyluk unequivocally determined that pets are property, not children, and disputes regarding pets must be resolved based on the applicable property law, not the best interests of pets, but discouraged such applications, having regard to reasonableness, proportionality and expense.  Justice Danyluk explained that this does not mean that emotion and attachment have no place in the analysis of property division and confirmed that considerations such as history of ownership or sentimental value could be important or even determinative factors in the final division of property.  The bottom line is that it is a property analysis and the principles that would typically apply to custody and/or parenting of children are simply inapplicable to the disposition of pets as family property. Justice Danyluk concludes that these interim pet applications should not be brought before the court and amusingly illustrates this point by reference to butter knives at paragraph 44:

“… 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 have limited access to those knives 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.”

Ultimately, Justice Danyluk declined to make an order regarding interim possession or arrangements for the dogs pending trial and directed the parties to try to resolve this matter between themselves.

Understandably, it may seem distasteful or even offensive to treat our dearest pets (or fur children even) as property.  In order to avoid this approach, separating couples can enter into formal, written, legally enforceable contracts regarding appropriate arrangements for their pets provided they can agree on such arrangements.  When separating couples cannot agree on what constitutes appropriate arrangements for their pets, but can agree that their pets should not be treated as property, they can decide to employ another approach, such as a pet-centered analysis, in a private mediation and/or arbitration processes (outside of court) to resolve matters.

Interestingly, Philip Epstein reports in his weekly newsletter, Epstein’s This Week in Family Law, March 13, 2017, that Alaska is the first state to require the courts to address the interests of companion animals when determining how to assign ownership in divorce and separation proceedings as a result of amendments to the State Divorce Act, which amendments became effective on January 17, 2017.  Perhaps the law is changing and other jurisdictions may follow Alaska’s lead in this regard.