Justice Danyliuk recently wrote a decision in Henderson v Henderson, 2016 SKQB 282, which serves as a harsh reminder that in the eyes of the law, dogs, cats and other pets are considered property. While everyone is likely familiar with custody (i.e., decision making rights) and access (i.e., visitation rights) in the context of separating couples fighting over their children, we are seeing more and more couples that do not have children, fighting over their beloved pets (sometimes referred affectionally as their "fur babies").
The case law in several provinces, including here in Ontario, has made it clear that under our current legislative family law regime, the court has no power to order custody or access to pets. Pets are treated as property, and if they are financially valuable (e.g., highly sought after for breeding purposes) then divorcing couples are expected to include them in their Net Family Property Statement (as harsh and inhumane as that sounds).
In Warnica v. Gering, 2004 CanLII 50065 (ON SC), which was upheld by the Court of Appeal of Ontario, Justice Timms wrote the following:
[18] [...] In either event, the applicant could proceed there with a claim to have a declared interest in the dog, pursuant to the doctrines of constructive or resulting trust. If a dog is property, then in that sense, it is no different than any other property; for example, a ring or a painting.
[19] Of course, any pet is somewhat different, in that it does not readily lend itself to physical division. A pet could be sold, with the proceeds to be divided in accordance with any determination as to the parties’ respective interests therein; however, that is something that few would want. Certainly it is something that no one wants here. A pet could be shared, as happened in the case of Rogers v. Rogers. In my view that would be akin to a custody access/order. Whether in the Family Court or otherwise, I do not believe that any court should be in the business of making custody orders for pets, disguised or otherwise. To the extent that any of my colleagues may feel otherwise, I respectfully disagree. Obviously, I acknowledge that pets are of great importance to human beings. Strong bonds develop between them and the human beings that look after them. To some people, the relationship with their pets takes on a significance exceeding that of any other. They go to extraordinary lengths to preserve that relationship; even at a cost that some would say is disproportionate. Some may consider them to be children; however, they are not children. (emphasis added)
Animals, including pets, are regulated and protected by a whole host of legislation across this country, including federal legation (e.g., the Criminal Code of Canada), provincial legislation, (e.g., Ontario's Animal Health Act, 2009, and the Residential Tenancies Act that voids "no pet" clauses in residential leases), and municipal by-laws (e.g., by-laws concerning registering pets, the maximum number of pets per household, etc). While these are all important pieces of legislation, animals deserve more recognition under our politician-made laws, as well as strengthened protection under our legislation:
we need stronger penalties and deterrences for cruelty against animals (some animal rights activists would say the penalty should be no less than injuring or killing a person, after all we are all animals);
we need stronger safety regulations for pet food (pet owners need better awareness of what "filler" by-products are being put into our pet food and passing them off as meat);
we need better municipal / provincial regulation of breeders (to crack down on inhumane puppy farms); and
we need some form of recognition of pets in our family law system.
Until our politicians are asked to enact new legislation however, the Courts will be reluctant to advance the common law in that direction. Private contract law could be the interim solution to this issue.
In most cases Courts will uphold a contract, even if it seems a bit ridiculous. Freedom of contract is one of the paramount principles of our legal system; nevertheless, contracts can be challenged for a number of reasons including duress or extortion to sign the contract in the first place (which is why independent legal advice is so important), or if the contract is contrary to public policy. That being said, I cannot think of any "public policy" ground that would prohibit two individuals to enter into a private contract that confirms their rights and obligations vis-a-vis their pets in the event of a breakdown in the relationship. We already include pet clauses in wills, why not a stand alone pet custody contract?
While one could insert a few pet clauses in a domestic contract, I would suggest a separate, stand alone, contract in case a Family Court decided that it lacked jurisdiction to hear the matter. That being said, an argument could be made that pet clauses would fall under "ownership in or division of property" or "any other matter in the settlement of their affairs", which are included in the definitions of marriage contracts, cohabitation agreements and separation agreements under the Part IV of the Family Law Act.
One of the benefits of using contract law to determine pet related matters is that it provides the parties all of the standard remedies in contract law. For example, if one party refuses to pay for the veterinarian expenses contrary to the contract, the matter should be easily resolved by the Small Claims Court. If one party is withholding visits contrary to the contract, the party could go to the Superior Court and sue for specific performance (which is an equitable remedy that the Small Claims Court does not have jurisdiction to give). As always, legal costs should help to act as a deterrent from breaching the contract in the first place.
In drafting pet custody and access clauses, I would suggest the parties give some thought as to:
whether there would be sole decision making or joint decision making (this is important for health related decisions);
the visitation schedule (will the pets be "week on week off" or will the pets reside primarily with one party and the other party visiting from time to time);
the financial burden of having pets (including such things as food, grooming, cat/rabbit litter, toys, obedience training, and of course veterinarian expenses);
end of life decisions (notice to the other party to give him/her an opportunity to say goodbye); and
guardianship of the pets in the event of the death of one or both parties.
Despite any hard feelings that may exist when a couple decides to separate, the beloved pets should not needlessly suffer as well. Animals are highly emotional beings and the sudden (and permanent) departure of one of their human companions can be devastating for them. I encourage couples that are going through a separation with pets to consider their fur babies' needs in addition to their own.