A Saskatchewan judge recently dismissed a separating couple’s request for a decision over the “custody” of their dogs, stating that “to consume scarce judicial resources with this matter is wasteful” and saying that “such applications should be discouraged”.

This decision confirms many others that have recognized that dogs, and other pets, are considered property for family law purposes, and will not be recognized as children by courts, therefore precluding custody, and similar, decisions.

The Separation

The parties in question, Suzanne and Kelly, were married in 2000. Prior to marrying, they had lived together and had a cohabitation agreement which provided that the property that each owned prior to the marriage remained their property, as did any property each solely acquired during marriage. Only property that was specifically designated as joint property was to be shared.

Suzanne and Kelly did not have children, but did have three dogs which became the focus of their love and affection: Willow (age 2), Kenya (age 9), and Quill (age 13).

Following the couple’s separation, the dogs were staying with Suzanne’s parents, as the family home had been sold. Both parties were regularly seeing the dogs at this time.

Kelly commenced a court petition claiming unequal division of the home and other family property, as well as exclusive possession of either Kenya or Willow (Quill was quite elderly and ill at the time of the petition, and the parties previously agreed he would live his remaining says with Suzanne). His position was that the court ought to decide which dog was to go with which party on an interim basis, based on possession of property rules under Saskatchewan’s Family Property Act.

In response, Suzanne filed her own petition requesting something that was more akin to an interim custody decision rather than a division of property order. She requested that all three dogs ought to reside primarily with her, and that Kelly could “exercise reasonable access” to Kenya or Willow as long as he gave her advanced notice, and as long as his access was no longer than 1.5 hours. Suzanne also wanted to be solely responsible for all decisions pertaining to the health and well-being of the dogs, including their day to day needs as well as decisions about their health and nutrition.

The parties differed in their opinions on which of them had taken better care of the dogs while they were still together, and which one of them had taken more responsibility with respect to caring for the dogs, including, for example, in taking them to vet appointments and obedience training classes.

Dogs are Property

The first thing that Justice Danyliuk had to consider was the current state of the law on pets following the demise of a relationship, and whether pets were to be treated as property, or whether they were to be dealt with as children would be dealt with.

Justice Danyliuk commented that:

I say without reservation that the prospect of treating pets as children would be treated holds absolutely no attraction for me. I say this cognizant that many dog owners, perhaps most of them, choose to treat the family dog not as property but as family. Certainly that is what these parties did. But that choice does not alter the law that pets are property. My present task is not to act with emotion or to validate the personal perspective of pet owners within the legal context. Rather, it is to interpret and then apply the law. And for legal purposes, there can be no doubt: Dogs are property.

Waste of Court and Other Resources

Justice Danyliuk also questioned the apparent willingness of the parties to spend money and tie up court resources in order to resolve their dispute over their pets. He pointed to an earlier Saskatchewan decision about dogs in a divorce, in which a different judge had stated that:

it is an unacceptable waste of these parties’ financial resources, the time and abilities of their two very experienced and capable legal counsel and most importantly the public resource of this Court that a dispute of this kind should occupy all in a one‑day trial involving three witnesses, including an expert called by one of the parties. It is demeaning for the court and legal counsel to have these parties call upon these legal and court resources because they are unable to settle, what most would agree, is an issue unworthy of this expenditure of time, money and public resources.

It must be stated that, as both counsel acknowledged, a dog is a dog. Any application of principles that the court might normally apply to the determination of custody of children are completely inapplicable to the disposition of a pet as family property. Any temptation to draw parallels between the court’s approach in this case to the principles applied to settle child custody disputes must be rejected.

Dogs are Not Children, Therefore No Custody Decision

Indeed, in support of his position that dogs were to be treated as property, and not as children, Justice Danyliuk pointed to a number of key differences in the way in which people treat dogs and children, namely:

  • “In Canada, we tend not to purchase our children from breeders.”
  • “…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.”

In making his decision, Justice Danyliuk did not disregard the strong emotions that people have with respect to their pets. He recognized that pets are treated much differently than other personal property, and that legal protection exists to, for instance, prevent them from being neglected or treated with cruelty. He noted that in other decisions dealing with pets after a divorce, judges had acknowledged that having a long history with property, or the fact that property had sentimental value for one spouse would be important and even determinative factors in making final division of property decisions.

Ultimately, however, he urged the parties to resolve this on their own without the need to engage court resources:

Simply put, I am not about to make what amounts to a custody order pertaining to dogs. I will be more blunt…and state that this sort of application should not even be put before the court.

I urge both parties to attempt to resolve this matter prior to the necessity of a pre‑trial conference and trial. Both parties should bear in mind that if the court cannot reach a decision on where the dogs go, it is open to the court under the legislation to order them sold and the proceeds split – something I am sure neither party wants. Both should consider the admonitions within this ruling and from the other cases…and do their best to come to an agreement that obviates further court action and the attendant delay and expense.

If Not Custody, Then What?

Justice Danyliuk noted that Kelly had brought his application for the dogs under the provisions of the Family Property Act requesting under s. 6 of that Act, the exclusive possession of one of the dogs as part of the general household goods and/or, under s. 26(1) (2) and (3) of that Act, for the court to make any “directions and orders that are necessary” with respect to family property.

In response, Justice Danyliuk stated that:

In the particular circumstances of this case, I am not disposed to make an interim order of any description. 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 for 1.5 hours per week 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.

He additionally stated that he did want to encourage any interim or final applications about pets to the court in the future.

The Cohabitation Agreement

Justice Danyliuk noted that the decision on any final property division would rest on a) the terms of the cohabitation agreement and b) factual determinations as to how the dogs were acquired, cared for, and treated during and after the relationship. However, both of those matters were not something that he was inclined to deal with.

Justice Danyliuk ultimately stated that he was not going to disturb any existing arrangements that the parties had with respect to the dogs, and that they were to remain at the parents’ home for the time being.

He cautioned the parties not to waste any more court time or resources.

An experienced family lawyer can help parties make decisions and come to a mutually satisfactory decision with regards to a pet.

If you have questions about making decisions about pets following a divorce or separation please contact Jason P. Howie, online or at 519.973.1500.