A recent decision from Saskatchewan's Court of Queen's Bench has drawn the attention of pet owners after the judge ruled that dogs are to be considered property and should not be treated as though they are children.

The judge's words came in response to a divorcing couple's petition to the court for interim possession of the family dogs.  The Saskatoon couple didn't have any children but instead had "acquired" dogs in the course of their relationship.

In the petition, the husband sought an order for possession based on the rules of property law. The wife, however, in her counter-petition, sought a custody order that would treat the dogs as if they were children.

While recognizing the special role that pets have in the family, Justice Richard Danyliuk was firm in his ruling that dogs are property and should not be treated as if they were children.  "Dogs are wonderful creatures," he remarked. "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."

In coming to his decision, Justice Danyliuk considered a number of objective but dispassionate realities with respect to the differences between pets and children:

  • "In Canada, we tend not to purchase our children from breeders."
  • "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."

The judge still acknowledged that society can treat pets humanely despite considering them to be property in the legal sense. "The concepts of dealing humanely with pets while considering them to be property are not mutually exclusive," he commented.

Given his decision to consider pets as property and not children, Justice Danyliuk found that it would be improper to make an order about visitation rights.  He acknowledged that he would not make such an order for any other household property, so the same principals should apply to pets.  In an example that even the judge himself found ridiculous, he rhetorically asked, "Am I to make an order that one party have interim possession of (for example) the family butter knives but, due to a deep attachment to both butter and those knives, order that the other party have limited access to those knives for 1.5 hours per week to butter his or her toast?"

Not only was the judge unwelcoming to the wife's petition for custody, but he also took time to scold the couple for wasting the court's valuable time and resources to decide this matter.  "In a justice system that is incredibly busy, where delay has virtually become systemic, where there are cases involving child welfare and family matters that wait months for adjudication... these parties have chosen to throw this dispute into the mix," he noted.  "To consume scarce judicial resources with this matter is wasteful. In my view, such applications should be discouraged."

He even repeated his position multiple times throughout the decision that "this sort of application should not even be put before the court".

The judge went so far as to point out the inappropriateness of trying this matter in our legal system.  "It is demeaning for the court and legal counsel to have these parties call upon these legal and court resources because they are unable to settle, what most would agree, is an issue unworthy of this expenditure of time, money and public resources."

Finally, in an effort to persuade the parties to settle this issue out of court, Justice Danyliuk reminded the couple of the consequences of further litigating this issue in court.  "Both parties should bear in mind that if the court cannot reach a decision on where the dogs go, it is open to the court under the legislation to order them sold and the proceeds split – something I am sure neither party wants."

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