Pet custody: No laughing matter when it comes to women’s equality
January 3, 20173 January 2017
Right before the December holidays, a Canadian judgment denying an application for pet custody, Henderson v Henderson, captured the attention of the national and international media (including People magazine and the Washington Post). The treatment of the issue in Henderson, like very many of the pet custody cases, was, at turns, somewhat humorous and derisive, implying that the parties were locked in legal battle because the pets were substitute children (“not unusual in such a situation” because the couple was childless). It is written in a conversational style that undoubtedly added to its media appeal (“Dogs are wonderful creatures…But after all is said and done, a dog is a dog.”).
In Henderson, the husband framed his application as an “interim exclusive possession order” for either one of two family dogs, named Willow and Kenya. Justice Danyliuk ruled that “for legal purposes, there can be no doubt: Dogs are property” and child custody principles cannot apply to them. Accordingly, the court was unwilling to make “what amounts to a custody order pertaining to dogs” and furthermore, “this sort of application should not even be put before the court.”
I myself laughed out loud at parts of the decision (in my defence, it includes in its cast of animal characters, cats by the names of Beaker, Rodent, Oinky and Slimey). But whatever the personal or popular response, is the appropriate legal response one of amusement and impatience? I suggest that judicial failure to treat pet custody as a serious legal matter has implications for women’s equality and particularly women’s vulnerability to violence in intimate relationships.
To date, there have been another dozen or so cases concerning the ownership, possession and visitation of pets in Canadian family law proceedings. Most are in keeping with the result in Henderson, including the decision of the highest Canadian court considering the matter, the Ontario Court of Appeal in Warnica v Gering. It agreed with the lower court that the application for shared custody of a dog named Tuxedo was a “waste of the Family Court’s time,” and that the court lacked the jurisdiction to make orders for pets akin to a custody/access order “disguised or otherwise.” Pets are property, “no different than…a ring or a painting.”
In only one of these “pet custody” cases, Grimalyuk v Concelos (Ontario SCJ) was there evidence of spousal abuse and violence. In at least a few others, there was the suggestion that spouses were using the pets to cause emotional distress to their partners after separation. In Thomson v Thomson (BCSC), the judge referred to husband speaking to the wife with “barely concealed contempt” and telephoning her after the separation to tell her, falsely, that the dog at issue in the case was dead. In Pelton v Fox (NSSM), the judge referred to the male spouse having no genuine interest in the dog, but motivated to litigate instead by “vindictiveness.”
These cases hint at the fact that legal rules about and justiciability of “who gets the pets” post-separation have special importance for women who have suffered abuse, and therefore they are matters of serious consideration for family law courts. Nevertheless, no Canadian court has overtly acknowledged this relationship. The law has not caught up with social science research, which has for years documented the connection between treatment of pets and intimate violence against women.
Such violence is a clear and persistent indicator of women’s inequality.
Women who experience intimate partner violence will often see her pets abused as well; it is one tool in abusers’ arsenal of emotional abuse and control (e.g. Stark, 2009, Faver and Strand, 2003). In one of the most comprehensive US studies on the issue, 52.5% of abused women in domestic violence shelters reported that their abuser threated to hurt or kill pets, a figure that was 11 times higher than women in the general population (Ascione et al, 2007). Over 72 per cent of these reports involved serious harm or death to the pets. Canadian studies contain similar results. In an oft-quoted 2000 Ontario SPCA study, 44% per cent of abused women had pets abused or killed by their partner; a 2012 Alberta study similarly reported 36 per cent of abused women had pets that were subject to threats or actual harm (and that the threats were carried out in the overwhelming majority of the cases).
Interestingly, one study reported that batterers who abused pets (versus batterers who did not) had the same mindset as one that dominates the jurisprudence: that pets are property, not members of the family.
Further, these studies show that women delay escaping abuse due to fears over their pets’ welfare. In the U.S. study cited above, if pets were threatened or harmed, over one-third of women delayed entering a shelter over these fears. This may be a conservative figure with existing Canadian statistics showing this figure to between 43 per cent (Ontario SPCA study) to 73 per cent (Alberta study; see also this 2016 Saskatchewan study with similar findings). This stands to reason, as pets are a significant source of comfort and support for abused women, particularly amongst those women whose pets had been targeted for abuse (Flynn, 2000).
Whether legal remedies were available to recover their pets would be an issue for most of these women: the statistics suggest that over half of those in domestic violence shelters escape without their pets and that this is a source of significant worry for them (Flynn, 2000). However, as the Canadian cases shows, courts must also be alert to the potential of litigation over pets to be used as a form of harassment. The potential for abusive litigation does not mean courts should reject these cases as non-justiciable based on the de minimus principle. This would mean that the minority of abused women who manage to escape with their pets would be protected from abusive litigation but it would also have a chilling effect on the majority contemplating leaving their abuser. Additionally, to treat pets under family law simply as another article of property and not as sentient beings that society has chosen to protect through animal welfare laws is also a potential impediment to these women leaving and recovering their pets from a place of safety.
In Grimalyuk, the court seemingly defied common law property principles to order that ownership of the pets be transferred to the abused spouse.
It is tempting to regard pet custody cases as entertainment, particularly when the comic figure of the doting “pet parent” is part of our contemporary social discourse. But the serious issues that lay underneath their surface mean that they deserve serious legal attention and that the applicable legal principles should be developed with due consideration for women’s equality.
For more Canadian legal decisions showing the diversity of approaches to pet custody, see, in addition to the above-noted: Ontario (Rogers v Rogers,  OJ No. 2229): Newfoundland (Simmonds v Simmonds); British Columbia (Kitchen v MacDonald),; Nova Scotia (Gardiner-Simpson v Cross, Hawes v Redmond); Alberta (Millar v Homenuik); Saskatchewan (Gauvin v Shaeffer, Ireland v Ireland).
Kerri A. Froc is a Postdoctoral Fellow at Carleton University, and a Trudeau and Vanier Scholar. The author's views are her own. Photo licensed under Creative Commons by thezartorialist.com.