Many dog owners see their canine companions as part of their family. However, a recent judgment in Canada (Kelly Thomas James Henderson v Suzanne Dawn Henderson 2016 SKQB 282) has made a firm stance on whether family pets are considered children or property. During proceedings, the judge dismissed the request to make an order for custody and visitation rights for dogs, stating it was ridiculous and a waste of the Court’s time.

What Happened?

In this case, a separated coupled could not agree as to where their two dogs should live. The wife asked the Court to treat the case in the same way as a child custody dispute and sought an order to keep her two dogs – Kenya and Willow – with visitation rights for her estranged husband. 

She submitted a significant volume of evidence supporting her request, including submissions about her ex-partner being ‘more of a cat person’ and his apparent ‘improper inattentiveness’ in caring for dogs. After hearing this evidence, the Judge dismissed the application and took it upon himself to warn the couple (and others) about wasting valuable court resources and causing delay in a system notorious for time pressures.

Are Dogs Considered Property or Children?

On the issue of whether dogs can be considered children, the Judge made it very clear that this is not the case, providing the following reasons:

  • unlike children, dogs are often purchased;
  • unlike children, dogs can be bred based on bloodlines, with a high price put on services that do so;
  • unlike children, when dogs are sick or aggressive, they are put down;
  • just because there is an emotional attachment to something, does not mean that it is not property. He made a comparison to butter knives, and that there would never be such an order made to share custody of such a thing, regardless of the deep attachment one or both parties may have.

The Judge’s dispassionate reasoning largely mirrors Australia’s position. Dogs are not people, and so the statutory positions contained in family law legislation can’t apply to their ongoing care. There is no ‘best interests’ principle that applies to dogs or other pets. Ultimately, they are merely items of property and can be divided as with any other during divorce proceedings. The Judge in this matter made this point by reminding the parties that if they couldn’t come to a decision between themselves, it would be open to the Court under the current legislation to order that the dogs be sold to the highest bidder, and the proceeds split between them. 

Key Takeaways

Attempting to the use the judicial system as a forum for determining pet custody is not a smart move. Rather, the wife should have had her husband sign a binding agreement regarding the ultimate ownership of the animals during the relationship. 

In the event of a separation or divorce, it would be prudent to set aside your differences and come to an agreement with your partner as to the care of the pets. Even if the law doesn’t consider that there is a ‘best interests’ principle for your dog, you and your partner should still work to find an arrangement that supports the welfare of your pets.

Emma Jervis
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