21 January 2012

Provincial Court Releases Decision on Pet Custody Battles

The Family Relations Act lets the court make orders for custody and guardianship of and access to children. Although the word "children" is unambiguously defined at s. 1(1) as referring to "persons," separating couples have nevertheless, from time to time, applied to court for orders about custody, decision-making authority and access schedules in respect of their pets. Although I don't think even Mitt Romney would say that pets are persons, I've even seen applications for pet support and the sharing of a pet's expenses!

Although people often form close emotional bonds to their pets, pets are, in the eyes of the law, property with exactly the same status as a coffee cup, a car or a curio. The court can make order about who has the legal right to the ownership of property, but its jurisdiction to make orders rotating a right of possession is somewhat less certain.

This was the issue before the court in Kitchen v. MacDonald, a small claims case involving a separated couple, when the claimant applied for:
"... what amounts to a declaration of ownership in a border collie dog named Laddie currently in the possession of [the respondent], and further for an order specifying possession time for each party of the dog."
It is surely a measure of the parties' affection for the dog that the application was brought to a trial, for which each of them paid to be represented by skilled counsel. Here is the court's account of some of the evidence led:
"[6] [The respondent and various other witnesses] all testified to varying aspects of how [the respondent] acquired the dog. ... It was [the respondent] who took the dog to all of its veterinary appointments, appears on the veterinary records as owner, and paid for all of the veterinary bills as well as all of their costs associated with the dog’s needs. She licenced the dog with the City of Kamloops and paid for those licences. She admits that the dog did spend time with [the claimant]. In fact, she corrected him if he referred to the dog as his, and stopped contact when he posted a photo of 'his' dog on the internet. He worked nearby and was willing from time to time to come and take the dog, some times for a few nights at a time. She does not deny that he developed a fond attachment to her dog, but denies that she ever gifted an interest in the dog to [the claimant]. At trial, [the claimant] acknowledged that he did not play a role in the selection or purchase of the dog. He also acknowledged, although he said that he purchased dog food and other items for use at his home, he did not otherwise contribute to the upkeep of the dog. He believed the dog was his because she called him Laddie’s daddy, he took care of it often, and they treated it as theirs when they were in a relationship.

"[7] There is uncontroverted evidence that [the respondent] referred to [the claimant] as the dog’s 'daddy'. There is an undated letter on file as well reporting to be from Laddie to 'my daddy', apparently following a break-up where [the respondent] writes on behalf of the dog that she is sorry she cannot make them a family. It suggests ways that he can come and see the dog while she is out of the house at work. It concludes by saying 'I know there is no way mommy would ever keep you from seeing me – that’s just not the kind of mommy she is. She wants us to both be happy.' There were also gifts and cards over the years addressed from the dog to his 'daddy'. [The respondent] also encouraged [the claimant] continuing to look after the dog during the day. ..."
Good grief. However, as the court observed, its jurisdiction in such matters is limited:
"[2] This court does not have jurisdiction to make declarations of trust. I have jurisdiction to make a finding of ownership with respect to the dog. If I find that it is jointly owned, I have jurisdiction to order that the party who keeps the dog pay the other party half the value of the dog. I cannot find that two parties own a dog and then proceed to make orders for 'access' to the dog."
The court then quoted from an Ontario case, Warnica v. Gering, involving a dog named Tuxedo:
"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 ... 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. ... 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."
This brings us back to the basic legal issue involving the pets of separated couples: determining the legal right of ownership. As the judge eloquently put it:
"[7] ... By anthropomorphizing this dog, [the respondent] led [the claimant] to, and [the claimant] allowed himself to be possessed of an expectation that, the dog was 'the child' of both of them. This, however, despite the sentimental aspects, does not create a beneficial or legal interest in a dog.

"[8] ... However, all of the factors in the mix conclusively determine that [the respondent] is the sole owner of the border collie. [The claimant's] interest is merely a sentimental one. That does not bestow any right of possession on him."
Update: 30 December 2015

This post continues to be read and commented on, as a result of which I've taken the time to write a longer, more detailed post on the subject, "Dealing with Pets After Separation." Please read that post before commenting here; my new post may answer your questions and may even be a more appropriate place to leave a comment.