Canada: Dispute Over Custody Of The Dog(s)

Last Updated: August 21 2017
Article by Katelyn Bell (Summer Law Student)

Back in January, we discussed the issue of dogs having rights similar to that of children in a custody battle. Mention was made to a then recent decision from the Saskatchewan Court of Queen's Bench, which held that dogs are to be considered as "property" and should not be treated as though they are children.

The judge's words came in response to a divorcing couples petition to the court for interim possession of the family dogs.

Without question, custody battles over the family pets are quite common. Though it is not often that these types of disputes will make it to the courts.

However, in Nova Scotia this issue has once again come before an adjudicator. Similar to Justice Danyliuk in Saskatchewan, Eric Slone – an adjudicator with Nova Scotia's small claims court – was tasked with ruling on who gets custody of the family dog.

Slone presided over a case of a former Halifax-area couple who had been sharing one of their dogs, Lily, since they separated back in 2012. However, the one of the partners sought to obtain sole ownership of Lily in early 2017.

Because the previous ruling on the issue of "dog custody" stems from Saskatchewan, the decision is only persuasive in Nova Scotia, rather than authoritative. Decisions from the same level of court or other provinces or jurisdictions may assist decision-makers in reaching a decision, though these decisions are not binding upon adjudicators in other jurisdictions.

However, the law in this area is clear. At law a dog is property, as it is a domesticated animal that is owned. "At law a dog enjoys no familial rights," explained Justice Danyliuk.

"In a more perfect world there would be special laws recognizing pets as living, feeling creatures with rights to be looked after by those who best meet their needs or interests, and there would be specialized accessible courts to determine the 'best interest of the dog,' as there are for children in the family courts," Slone said in his written ruling released in early August.

The Halifax adjudicator continued, "In this less perfect world, there is the Small Claims Court operating on principles of property law, treating pets as "chattels" not very different – legally speaking – from the family car."

"Determining ownership of family pets is not easy for the court, nor necessarily fair to the disputants. Often, as is the case here, neither of the people in this dog's life was really concerned about legal ownership until things went wrong. When families break apart, the family dog will usually be awarded to the person with the best case for legal ownership," Slone wrote.

Unfortunately, what these decisions mean is that despite the representation in "Legally Blonde," it is actually not in fact that easy to obtain "full canine property ownership" – Elle Woods.

Here's hoping that Canadian law surrounding pet ownership does in fact change in the near future. and that the end result is the "perfect world" described by Slone.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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