Pets – Family or Property?

The recent Saskatchewan Court of King’s Bench case of Henderson v Henderson 2016 SKQB 282 dealt with the contentious issue of whether pets are to be treated as akin to property or akin to children in the context of a separation or divorce.

Before delving into the emotional turmoil of the matter at hand, the Honourable Justice R.W. Danyliuk began his judgment with an unassailable truth: “Dogs are wonderful creatures” (para.1.)

The parties in this case married in June 2000. They did not have any children but acquired a number of pets, including three dogs – Quill, Kenya and Willow. There were also cats by the name of Rodent, Beaker, Slimey and Oinky but neither party seemed to care much about where they ended up.

The Husband’s application was for “interim exclusive possession” of one of the dogs, pursuant to matrimonial property law.

The Wife’s application was essentially an interim custody application, suggesting that the three dogs would primarily reside with her with reasonable access to the Husband and giving the Wife sole decision-making authority with respect to the health and well-being of the dogs.

Nobody could accuse Danyliuk J. of not appreciating the depth to which owners love their pets and treat them as family. Referring to Quill, who was not expected to live much longer, Danyliuk J. states that “[i]t is one of life’s cruel twists that dogs are such noble beings yet enjoy such a short life span. Thankfully, there is no contest between the parties that Quill is to remain with [the Wife] to be cared for in this final time on earth” (para. 11.)

However, Danyliuk J. goes on to explain why “the prospect of treating pets as children would be treated holds absolutely no attraction…” (para.23.) While avid dog lovers might cringe (or weep) at the thought of treating dogs as mere property, Danyliuk J.’s judgment illustrates that the dichotomy of treating pets as children vs. property is an over-simplification.

In reality, “[r]ejecting the ‘custody approach’ to the dogs does not mean that emotion and attachment have no place in the ultimate analysis of property division” (para.30.) The fact that one party has a long history with a particular piece of property or a sentimental attachment can be a significant factor in the final division of property. Further, it is possible to deal with pets humanely and sensitively while still treating them as property. As a final property determination, Danyliuk states that it will be relevant how the dogs were acquired, cared for and treated during and after the relationship (para.49.)

Ultimately, however, Danyliuk. J. refuses to make an interim order as to the possession of the dogs. He states that “this sort of application should not even be put before the court,” given the scarce judicial resources available at present (para.40.) While Danyliuk J. recognizes that the matter of the dogs could proceed to trial and be dealt with alongside the rest of the matrimonial property, he strongly encourages the parties not to pursue the matter. Indeed, he goes further to remind the parties that, at trial, it would be open to the court to order the dogs sold and the proceeds split – a harsh warning to potential litigants who would bring such an application before the court when there are urgent child welfare and family matters to be heard.