“Who Gets the Dog?” A Family Law Approach

Abstract

As the saying goes, pets are family. It is well-known, however, that the law does not take animal interests into account when resolving family law disputes dealing with companion animals. In law, they are property — mere things, the value of which rests solely in their market price. The property designation does not prevent people from treating their dogs as more than objects — providing them with expensive medical care, sharing their homes with them, loving them in a similar way to children. But when families break down, and their members cannot agree on what should happen to them, the property status of nonhuman animals becomes stark. When it comes to the family dog, there are no custody determinations, no inquiries into the animal’s best interests, and no doctrinal basis for ordering access, visitation, or financial support. Rather, in Canadian courts, who gets the dog is typically determined by a straightforward property analysis, where purchaser equals owner. With few exceptions, and as unpalatable as it may be to people who share their lives with an animal, the law concerning the ownership and continued care of companion animals has not kept pace with societal attitudes toward them. This article makes a case for change. On the heels of the only reported Canadian appellate court decision to weigh in on companion animal ownership following a break-up, it sets out and argues in favour of an alternative model — one that looks beyond who purchased an animal and considers the relationship between dog and human. This is not a radical proposition. In setting out its approach to determining ownership, this article draws on relational theory to endorse a rising trend in the case law. It envisions an analysis premised on the view that determining ownership of a companion animal requires nuanced analysis, that looks to a series of factors and indicators about the relationship between human and animal.