Custody and access disputes in family law are extremely emotional. Henderson v. Henderson,1 although not a custody and access dispute, exemplifies the emotional nature of family matters. Henderson is about possession of property. Specifically, it is about the competing claims ex-spouses have to the possession of family dogs following the breakdown of a marriage.2 The Court effectively summed up its position in three words: “Dogs are property.”3 While the Court quickly acknowledged the serious emotional attachments individuals may have to dogs, the Court went on to discuss the waste of judicial resources such disputes bring.4 The Court reiterated the conclusion in another Queen’s Bench decision dealing with this issue, Ireland v. Ireland:5 “Except in the most compelling of circumstances (perhaps to avoid a breach of the peace or potential harm that parties may do to one another), the Court should not be engaged with interim applications or the trial of an issue such as this.”6 Justice Danyliuk in Henderson took a harder stance, saying “I will be more blunt than the court was in Ireland, and state that this sort of application should not even be put before the court.”7
Unfortunately, disputes like Henderson are not unique. In the aforementioned Ireland case, the petitioner sought a final order granting exclusive possession of the family dog.8 In Brown v. Larochelle,9 the claimant sought possession of a three-year-old Korean Jindo dog named Luna, or alternatively, an order sharing Luna on a “week on/week off basis.”10 The Court in Brown noted that the law suggests joint use of a dog should not be ordered.11 Courts in Ontario have also dealt with these types of disputes. In Warnica v. Gering,12 the applicant applied to the court seeking shared joint custody of a pet dog, named Tuxedo.13 Ultimately, the Court in Warnica stated “I do not believe that any court should be in the business of making custody orders for pets, disguised or otherwise.”14
In Rogers v. Rogers,15 an older but more surprising case, an Ontario court implemented an access schedule.16 Clearly the Court in that instance felt it necessary to install a specified access schedule for Daman, a black Labrador Retriever. Despite reading the decision thoroughly, one would be reasonably flabbergasted at any court concerning itself with crafting what amounts to a custody and access order for a dog. The Court went even further, stating “[i]n first refusing her access and then opposing her application for; [sic] access, the husband was…unreasonable and inconsiderate of his wife’s feelings for the dog.”17
Disputes likes those above, notwithstanding the litigants’ affinity for their pets, waste precious judicial resources and strain the patience of judges. In Henderson, Danyliuk J. made his distaste for comparison between dogs and children clear when he, somewhat sarcastically, discussed the differences between the two. He noted, we do not weigh the economic costs and benefits of giving medical treatment to our children or end their lives if they become sick, and we do not kill our children for repeated bad behaviour.18 The fact that we now have precedent discussing the legal differences between children and dogs is concerning.
There is no doubt that Danyliuk J. in Henderson was right to urge the parties to resolve the issue prior to trial.19 However, the fact remains that for the parties, possession (or “custody”) of family dogs is an important and emotionally-charged issue. For this reason, it may be useful to treat possession of family dogs similarly to how custody and access disputes are handled in the early stages of proceedings, before the matter reaches trial.
Like custody and access disputes, the emotional nature of pet possession disputes is an ideal context for using alternative dispute resolution mechanisms. The implementation of short-notice/rapid-access alternative dispute resolution mechanisms, like those used in family law matters at the interlocutory stage, would be a substantially better and more effective means of addressing pet possession issues. Additionally, it could be made mandatory to attempt such alternative dispute resolution mechanisms, if circumstances permit.
Ensuring the availability of mediation resources in family matters at interlocutory stages may lead to earlier resolution of dog disputes and ultimately better utilization of judicial resources. In short, dog disputes are not suited for the court room. These disputes are more suited as plots for mediocre romantic comedies.20
* JD Candidate (University of Saskatchewan), avid cat and dog lover.
1 2016 SKQB 282 [Henderson].
2 There was no dispute over the family cats. As this is not an article on the merits of cat ownership, this will not be discussed any further. Additionally, the reported decisions do not include pictures of the dogs, named Quill and Kenya.
3 Henderson, supra note 1 at para 23.
4 Ibid at para 1-4.
5 2010 SKQB 454, 367 Sask R 130 [Ireland].
6 Ibid at para 10.
7 Henderson, supra note 1 at para 40.
8 Supra note 4.
9 2017 BCPC 115, [2017] BCJ No 758 [Brown].
10 Ibid at para 1.
11 Ibid at para 20. Interestingly, the Court also discussed how the evidence suggested shared custody of, and access to Luna would not be in her best interests.
12 2004 CanLII 50065 (Ont Sup Ct) [Warnica].
13 Ibid at para 1.
14 Ibid at para 19.
15 1980 CarswellOnt 2449 (WL Can) (Ont Dist Ct).
16 Ibid at para 34.
17 Rogers, supra note 15 at para 43.
18 Henderson, supra note 1 at para 32.
19 Ibid at para 41.
20 Who Gets the Dog, 2016, DVD (Los Angeles, Cal: 20th Century Fox Home Entertainment, 2016).