A few years ago my articled student, Marta, had (and still has) a dog. His name is Tito. He was my office dog. Every morning when I’d come up the stairs, he’s there waiting for me. When we have our morning meeting, he would be on the table supervising. So when Marta had to go to Vancouver to take her bar exam course, there was joking in the office that we would need an access arrangement in place for Tito. Funnily enough, when they both left, it took me weeks to stop looking for him at the top of our stairs. I think I felt his absence more keenly than I had expected.
I’m an animal lover, let me make that clear. My house is a Noah’s Ark and there are definitely times when I could say – hand on heart – that I love my animals as much as (if not more than) my two children. Sorry kids! I have two dogs at home who have been part of my life for over 9 years. They were the turning point in my first divorce. When noises were made that they may leave with the ex, the gloves came off. So I get it. I understand the love for an animal and the love that you get back. It is unlike that of your children in as much as they don’t talk back, wreck your car, eat all of your groceries, argue with their siblings and yell “I hate you” as they storm out of the room. They are different.
And the way the courts in Canada treat animals on the break down of a relationship is different from the way they treat children. There are no inherent rights to parenting time or contact with the family dog when parties break down. Not because the courts don’t recognize the love and bonds that develop between people and their animals but because the courts do not have the jurisdiction to make those types of decisions. Courts treat animals as property – they have jurisdiction to make a finding of ownership of a pet, but they cannot find that two parties own a pet and then make an access order to that pet. Not because they don’t empathize. Not because they are heartless. But because the courts are bound by the rules of court and law and our law doesn’t treat animals the same way that they treat humans.
I struggled with this post, because I know what I would do if someone tried to take my animals. But I also agree with the courts that Family court judges should not be in the business of making parenting time / custody / access orders to pets. They are busy enough as it is.
Resolving an access schedule for Buster is not an issue for a judge. This is something that two people should try very hard to resolve themselves – either personally or with a third party like a mediator. Remember, you both decided to give Buster a good home and lots of love, just because you have decided to separate doesn’t mean that he can suddenly become an item of property to be fought over. However if you go to court, that’s how the courts will treat him. Just something to think about