Pets should be treated as family members instead of mere property

By Tony Poland, LegalMatters Staff • New British Columbia legislation allowing pets to be treated as family members and not merely as property in a separation or divorce is a “positive move,” says Toronto family lawyer A. Julia P. Tremain.

B.C. became the first in Canada to enact such a law and it remains to be seen if other provinces, including Ontario, follow suit but it is an idea whose time has come, says Tremain, a partner with Waddell Phillips Professional Corporation.

“It has always been the case that pets have been treated as property and I do not believe that is a realistic approach,” she tells LegalMattersCanada.ca. “For pet owners, they are far more than property. There is an emotional connection.

“Treating pets like property is short-sighted and it doesn’t reflect the reality of most people’s feelings.”

In explaining the reason for the amendment to the province’s Family Law Act, B.C. Premier David Eby said pets play an integral role in the family dynamic.

‘Our justice system should be there to help’

“Going through separation or divorce is already difficult for couples and children. Our justice system should be there to help, not make it harder,” he said in a statement. “These changes include putting the health, safety and wellbeing of kids at the centre of every decision and using the actual experiences of families in the system to improve it. The initial changes also recognize that pets are an important part of the family, and allow a child’s relationship with a pet to be considered and respected.

“By making these reforms with input from people in B.C., we hope to make an already difficult time a bit less stressful for everyone involved.”

Family court judges in that province will now consider the following when deciding who has custody of the family pet:

• the circumstances in which the companion animal was acquired;
• the extent to which each spouse cared for the pet;
• any history of family violence;
• the risk of family violence;
• a spouse’s cruelty, or threat of cruelty, toward an animal;
• the relationship that a child has with the companion animal;
• the willingness and ability of each spouse to care for its basic needs.

Tremain says outside of B.C., pets are considered property in the eyes of the law. As an example of family courts’ reluctance to engage in the issue, she cites a 2004 Ontario court decision where Justice Roger Timms stated he does “not believe that any court should be in the business of making custody orders for pets.”

Strong bonds develop

“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,” he writes. “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.”

In a similar vein, a judge in a 2016 judgment wrote, “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. 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.”

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However, treating family pets as property ignores the important “emotional factor,” Tremain says.

“In the property law regime, the person who bought the dog is the property owner. However, they may not be the one who walks the dog every day or feeds it or who takes it to the veterinarian,” she says “As the law stands now in Ontario, the court does not take into consideration the relationship of family members to the pet.

“It can be especially difficult when there are children involved who are emotionally attached to their pet and only get to see it on a limited basis.”

Legal battles can be contentious

Legal battles to decide who keeps the pet can not only be contentious but also costly, Tremain says, potentially adding another layer of acrimony in a separation or divorce.

Because they are considered property, the welfare of the pet can also be overlooked under existing laws, she says.

“I have had cases where the pet goes back and forth from one person to the other and that may not be best for the pet,” Tremain says. “Sometimes pets need to be in one place. They need safety, security and a routine. It can be difficult for them to adjust to new places every other week.”

So far, there has been no move by the Ontario government to introduce a law similar to the B.C. legislation.

“Legislative changes in one province often boomerang into other ones, but I don’t know whether there’s an appetite for that kind of thing in Ontario just yet,” Tremain says. “However, if we have similar legislation, it will give family court judges other aspects to consider rather than simply classifying pets as property.”