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Pets: Property or family members...?

When married or unmarried couples separate, the primary issues to be determined are child/spousal support, day to day custody of children, and division of property acquired during the relationship. If parties cannot resolve matters between themselves, a Judge or Arbitrator must determine those issues. For some couples future care of family pets, whom they may consider to be a "member of the family", also becomes a contentious issue. This begs the question: are pets property to be distributed between the parties, or should a custodial regime be imposed as with children?

Justice R.W. Danyliuk, of the Saskatchewan Court of Queen's Bench, recently had the opportunity to address this issue directly in the case of Henderson v. Henderson, 2016 SKQB 282 (CanLII). The separating couple had no children but acquired several dogs as pets during their relationship. The parties had, quite prudently, signed a cohabitation agreement that dealt with property acquired prior to their relationship, but designated property acquired during the marriage as shareable. The husband applied for an interim order for possession of the dogs as household goods. The wife's application was analogous to an interim custody order. In his decision, Justice Danyliuk admonished the parties for wasting valuable court resources for this dispute and made the following pointed comments:

The proposition at law that dogs are property and are to be treated as such, and not as children are treated, is borne out by a reasoned and dispassionate consideration of the differences in how we treat dogs and children. A few examples should suffice as illustration. In Canada, we tend not to purchase our children from breeders. In turn, we tend not to breed our children with other humans to ensure good bloodlines, nor do we charge for such services. When our children are seriously ill, we generally do not engage in an economic cost/benefit analysis to see whether the children are to receive medical treatment, receive nothing or even have their lives ended to prevent suffering. When our children act improperly, even seriously and violently so, we generally do not muzzle them or even put them to death for repeated transgressions.

Justice Danyliuk refused to deal with the application as a custodial matter and dismissed the husband's application for interim possession of the dogs, but directed the matter to trial.

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