Canada: How Much Is That Doggy In The Window? Canadian Court Comments On Animals As Property

Last Updated: February 17 2017
Article by Douglas C. Jack

A recent case decided by the Family Law Division of the Queen's Bench for Saskatchewan provides some candid insights of the Canadian judiciary on the legal status of animals in this country. As most readers are aware, there has been some significant debate about whether or not animals are "mere property" or if they hold some "special status"; the approach which is ultimately adopted could have significant impact on issues such as the quantum of damages for veterinary negligence, the costs for premiums for malpractice insurance and the obligations placed upon pet owners to seek out an obtain appropriate veterinary care. While the case ultimately does not provide a definitive legal finding about whether or not animals are property, the comments of the presiding judge are insightful as the jurisprudence on this topic evolves.

The Case – "Possession" vs. "Custody"

The decision in Henderson v. Henderson was decided on August 31, 2016 in Saskatoon before Justice R. W. Danyliuk; it involved a dispute between spouses over the ownership and possession of three dogs, Quill, Kenya and Willow. Mr. Henderson brought an application to the courts for interim "exclusive possession" of either Kenya or Willow; Ms. Henderson countered with her own application for "interim custody" of all three dogs and providing for reasonable access by Mr. Henderson to the dogs. At the outset, it is relevant to note that one application was based on the notion of the exclusive possession of property while the other was rooted in the "custody" of the dogs.

In his decision, Danyliuk, J, acknowledge the commonly-held notion that pet owners have a special relationship with their animals; he writes in the decision: "Dogs are wonderful creatures. They are often highly intelligent, sensitive and active, and are our constant and faithful companions. Many dogs are treated as members of the family with whom they live." While commenting upon the nature of the human/animal bond, he then goes on to candidly state: "But after all is said and done, a dog is a dog. At law it is property, a domesticated animal that is owned. At law it enjoys no familial rights." In finding that dogs are mere "property", and upon reliance on other Canadian cases, he says the following:

"The proposition at law that dogs are property and are to be treated as such, and not as children are treated, is borne out by a reasoned and dispassionate consideration of the differences in how we treat dogs and children. A few examples should suffice as illustration. In Canada, we tend not to purchase our children from breeders. In turn, we tend not to breed our children with other humans to ensure good bloodlines, nor do we charge for such services. When are 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 are children act improperly, even seriously and violently so, we generally do not muzzle them or even put them to death for repeated transgressions.

The concepts of dealing humanely with pets while considering them to be property are not mutually exclusive. While as members of society we want to see ourselves as kind, gentle and civilized beings, and wish to cling to the notion that we treat our pets that way, ultimately pets are treated differently than are our children. An so it should be."

Based upon the foregoing reasoning, the court held that this type of dispute is not founded in the notion of an application for "custody" as would typically be the case for children in the midst of a matrimonial dispute:

"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...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."

The learned Justice relied upon a previous Saskatchewan case, Ireland v. Ireland, which similarly decided that the possession of a dog is not a matter of a custody dispute but rather a matter of the distribution of property. In 2010, Justice Zarzeczny determined stated the following:

"Any application of principles that the court might normally apply to the determination of the 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."

Having determined that possession of animals is not to be decided in the context of custody principles, Justice Danyliuk, determined that such disputes must be settled only on the basis of a division of property. Citing a 2008 Nova Scotia case, Gardiner-Simpson v. Cross, he referenced the following: "This case is not about the best interests of the dog; it is about who has the better claim to legal ownership. The analysis is no different than it would be if we were talking about a bicycle." He then stated: "Simply put, I am not about to make what amounts to a custody order pertaining to dogs. I will be more blunt than the court in Ireland, and state that this sort of application should not even be put before the court."

Judicial Intervention

In dismissing the application for interim possession of the dogs, the court in Henderson offered some particularly scathing comments about the use of public resources through the court system by litigants to resolve these types of issues. Danyliuk, J. states as follows:

"In a justice system that is incredibly busy, where delay has virtually become systemic, where there are cases involving child welfare and family matters that wait months for adjudication, these parties have chosen to throw this dispute into the mix....To consume scarce judicial resource with this matter is wasteful. In my view, such applications should be discouraged."

Those comments echoed the comments of Zarzeczny, J. in the Ireland decision when he said:

"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 call 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 the expenditure of time, money and public resources."

In the Henderson case the applications were dismissed and the presiding Justice simply encourage the parties to maintain the status quo with respect to the possession of the dog and to move quickly to have all of the issues resolved through negotiations.

The Impact

While considered in a family law context, the decisions discussed are important for the veterinary community to take note of in that they represent the emerging views of the Canadian judiciary on the notion that animals are mere property. As a consequence, it would appear that claims for unhappy veterinary clients against their veterinarians for negligence will be decided on the basis of providing damage awards equal to the fair market value of the animals as opposed to granting damages for "loss of companionship" or "emotional distress". By a judicial limitation on the awards of damages, insurers can better establish premium rates based upon the potential value of claims being limited by such decisions. Of interest is that the decision in Henderson does acknowledge the special relationship that owners have with their animals; however, such an acknowledgement is not accompanied with a determination that a dog can be the subject matter of a custody application similar to children. If pets are to be considered legally as property, then perhaps, subject to other laws relating to animal neglect and abuse, an owner's obligation to seek out and obtain appropriate veterinary care is minimized contrary to that which would be considered for children.

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