Challenges of Ruling in the Animal’s Best Interest

Alexia Lee, Senior Associate Editor, University of Toronto Faculty of Law Review and JD Candidate (2027), University of Toronto

Lynn Hu, Senior Forum Editor, University of Toronto Faculty of Law Review and JD Candidate (2027), University of Toronto

Under Canadian law, pets are considered personal property, akin to chattels.[1] As such, the person with a valid ownership right based on financial terms has the legal right to possess the pet in case of a dispute during separation or divorce. The settled law presents a significant departure from the social realities for most Canadians, who increasingly view their pets as beloved family members or their “fur children.” Case law has evolved over the years from a traditional property approach focused on legal ownership to incorporating relational factors into the equation. In 2024, British Columbia amended its Family Law Act (“FLA”) to reclassify pets as “companion animals” and codified factors to consider that recognized the sentience of pets, going beyond pure ownership.[2] The “best interest of the animal” approach takes a step further in prioritizing the well-being of the animal, similar to the notable “best interest of the child” approach. A 2024 decision by the British Columbia Civil Resolution Tribunal (the “Tribunal”), Bond v McInulty, is one of the latest examples of such an approach being taken in court.

While the evolution of case law and statutes in pet custody is well-intentioned and moving in the right direction, it nevertheless raises several implementation challenges. This article will highlight three of the main issues with the “best interest of the animal” approach, including (1) lack of an objective standard, (2) limited judicial resources, and (3) the dilemma of shared ownership.

Lack of an Objective Standard

The obvious issue when operationalizing the “best interest of the animal” approach is determining what is actually in the best interest of the pet and by what criteria. It can often be difficult for courts to decide what the pet’s best interest involves, absent obvious inhumane treatment. Without objective criteria or standards of evidence, the “best interest of the animal” can be contingent on significant subjective judgement or discretion on the part of judges, leading to inconsistent rulings.

The issue is best illustrated by contrasting the reasoning behind the two leading cases adopting the approach, Bond and Brown v Larochelle.[3] In Bond, Mr. Bond and Ms. McInulty were in a romantic relationship when they bought a dog named Bentley.[4] After their relationship ended, they shared custody and expenses for Bentley for eight years. In June 2022, Ms. McInulty refused to return Bentley to Mr. Bond because she no longer felt comfortable sharing custody.[5] Mr. Bond sought Bentley’s return.[6] Instead of assessing whether Ms. McInulty had taken good care of Bentley or the strength of their bond during the time of her sole possession, the Tribunal took Ms. McInulty’s decision to withhold visitations as an indication that she lacked regard for Bentley’s welfare and therefore gave sole ownership to Mr. Bond.[7] There was no affirmative evidence that Mr. Bond would prioritize Bentley’s interests.

Under similar circumstances, the Brown decision turned out differently. When Mr. Larochelle withheld custody of the family dog, Luna, from Ms. Brown, the Court viewed the bond formed between Mr. Larochelle and Luna during his sole possession favourably and gave him sole ownership, as it was in Luna’s best interest.[8] In coming to this decision, the Court in Brown also considered the dog’s breed and traits to determine the dog’s best interest.[9] By contrast, the Tribunal in Bond made no reference to Bentley’s traits to support its conclusion on what was in Bentley’s best interest. An equally likely scenario was that Bentley had formed a stronger bond with Ms. McInulty, given the time that had passed since Mr. Bond last saw him. In that case, awarding sole custody to Ms. McInulty might in fact have been in Bentley’s best interest.

Supporters of the “best interest of the animal” approach may argue that the approach will develop with time; as more cases and legislation affirm the approach, a concrete list of factors may emerge, just like how a list of factors to consider ownership under the relational approach emerged from an accretion of case law. However, the nature of animal law suggests that developing a list of factors that accurately determine a pet’s best interests will be difficult.[10] A judge cannot evaluate a pet’s interests by directly communicating with the pet. A judge must depend on external sources that purport to know what is in a pet’s best interest. This is the situation in child custody cases. Courts have used psychological research into child development to guide the evolution of a multi-factorial test.[11] Although courts can consider a pet’s particular breed or individual characteristics, as the Court did in Brown, that information may not be conclusive, given sharp differences of academic opinion in animal behaviour.[12]

The lack of clear standards to determine a pet’s best interest means judicial decision-makers have little guidance when applying the “best interest of the animal” approach. Instead, courts have the discretion to individually determine what factors are relevant to a pet’s best interest, which can lead to inconsistent decisions based on subjective reasoning. Each judicial decision-maker may interpret the best interests of a pet differently, much like how the judge in Brown and the judge in Bond had different interpretations. This results in uncertainty in the law, as parties are unsure which factors a judge will consider when determining a case. Furthermore, in the vast majority of pet custody disputes, it would be impractical for the parties to call expert witnesses.

Limited Judicial Resources

Practically, adopting the “best interest of the animal” approach could complicate the existing decision-making process and require more judicial resources for implementation. In the recent Ontario decision Franco v Franco, Justice Kraft repeatedly raised concerns about dedicating already scarce judicial resources to pet custody disputes, especially if the matter was to proceed to trial.[13] He stated plainly that going to trial with all the witnesses required would “not [be] a reasonable dedication of the court’s resources, particularly when judicial resources are scarce and families face months of backlogs before having their cases heard.”[14] Similar concerns were also expressed in Henderson v Henderson and Ireland v Ireland.[15] While the traditional property approach adopted in these cases is not without criticisms, it does make the valid point that while pets and children are similar in some regards in the eyes of pet owners (in terms of emotional attachment and familial importance), they are nonetheless distinct legal entities with different rights and obligations attaching to their owners or caregivers.

If other provinces adopt similar legislative amendments to their FLAs without allocating additional resources to their judicial systems, it may lead to more harm than good in the grand scheme of facilitating access to justice for all litigants. Additionally, adopting the “best interest of the animal” approach may open the door to more conflicts within the family justice system, given the additional uncertainties it would introduce. As Justice Danyliuk stated in Henderson, “[i]n 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,”[16] applications about pets should be discouraged.

The Dilemma of Shared Ownership

A related issue to resource constraints is whether courts should order joint or shared ownership of pets. The Court of Appeal of Newfoundland and Labrador discussed this at length in Baker v Harmina.[17] Recognizing that a broader view of ownership incorporating the pet’s best interest would significantly expand the scope of joint ownership, Justice White noted that “[t]he Court should be open to modifying legal doctrines to reflect social realities, but it should not do so without considering the practical implications of the change.”[18] Since pets are not jointly owned assets that can be sold and proceeds shared, the legal system is not well-equipped to deal with the problems raised. Even joint custody arrangements, as with children, usually cause more problems than they solve, as they can often lead to ongoing conflicts between the parties and more lawsuits down the road.[19] Even if this may be in the best interest of the pet, it may not always be in the best interest of the parties involved or an already overburdened court system.

Other cases have mostly taken a similar stance regarding joint custody. In Brown and in Bond, the Courts said that “the worst result for pet ownership cases is a conclusion the dog is joint property.”[20] In the amendments to B.C.’s FLA, legislators also decided that courts must not be permitted to order joint custody or shared possession, although courts may enforce prior pet custody agreements where they have jointly decided to share the family pet.[21]

An interesting exception is found in Bayat v Mavedati, the first ruling concerning the issue of joint custody under the new B.C. legislation.[22] Former common-law partners were in disagreement over who would get to keep their golden retriever, Stella.[23] Justice Nielsen applied the amended B.C. FLA to grant shared custody of Stella on an interim basis, citing animal sentience and Stella’s best interests.[24] The respondent was clearly dismayed by the judgement, raising concerns of potential complications that could lead to further litigation.[25] While the traditional approach has been criticized as treating the issue of pet ownership in binary terms and not reflecting the true nature of pets and our relationship with them,[26] the practical reality is that courts often have to decide a winner and a loser, regardless of the legal approach taken.

Conclusion

Due to the numerous challenges mentioned in this article, adopting a well-intentioned “best interest of the animal” approach in pet custody cases may raise more issues than it solves. While traditional property or relational approaches may not fully capture our societal understanding of pets, an explicit list of factors means parties have better clarity on the potential outcome of a dispute. Lastly, when joint ownership is impossible, courts should order parties to go through a mediation process, rather than picking a side arbitrarily based on a subjective judgement of what may be in the best interests of the pet.

[1] Bond v McInulty, 2023 BCCRT 263 at para 14 [Bond].

[2] Family Law Act, SBC 2011, c 25.

[3] Brown v Larochelle, 2017 BCPC 115 [Brown].

[4] Bond, supra note 1 at para 10.

[5] Ibid at para 12.

[6] Ibid at para 13.

[7] Ibid at paras 25, 28.

[8] Brown, supra note 3 at para 20.

[9] Ibid at paras 19–20.

[10] John DeWitt Gregory, “Pet Custody: Distorting Language and the Law” (2010) 44:1 Fam LQ 35 at 55.

[11] Ibid at 37.

[12] See Elizabeth Marshall Thomas, The Social Lives of Dogs (New York: Simon & Schuster, 2000).

[13] 2024 ONSC 6436 at para 38.

[14] Ibid.

[15] Henderson v Henderson, 2016 SKQB 282 [Henderson]; Ireland v Ireland, 2010 SKQB 454.

[16] Henderson, supra note 15 at para 4.

[17] Baker v Harmina, 2018 NLCA 15.

[18] Ibid at para 18.

[19] Ibid at paras 22–24.

[20] Bond, supra note 1 at para 21, citing Brown, supra note 3 at para 13.

[21] British Columbia, Legislative Assembly of British Columbia, Official Report of Debates (Hansard), 42-4 (3 April 2023) at 10048 (Hon Niki Sharma).

[22] Bayat v Mavedati, 2024 BCSC 619.

[23] Ibid at para 1.

[24] Ibid at paras 13–15.

[25] Ibid at paras 17–27.

[26] Jodi Lazare, “‘Who Gets the Dog?’: A Family Law Approach” (2020) 45:2 Queen’s LJ 287 at 297.