What should we do with a dog from a broken home? Under the law, the answer has traditionally been quite simple: dogs and other pets are property, in the same category as silverware and automobiles. A dog’s best interests after divorce do not come into play — the only thing that matters is who has legal ownership. But this may be changing. In California, which is often on the cutting edge of family law reform, new legislation has been passed saying pets can be treated more like children. That is, the animal’s best interests may be taken into account.

According to a recent article in the San Francisco Chronicle, the new law says pets are still “property,” but in deciding who gets to keep them, courts will have the discretion to weigh such factors as who feeds them, who takes them to the vet and on walks, and who protects them. As the author of the article, John Rogers, observed: “California courts could be going to the dogs. And maybe cats, too.”

If this legal principle ever makes its way to Canada — which would not be surprising, given that modern “no-fault” family law as we know it largely originated in California in the 1960s — it would be a significant shift. As it currently stands, pets are property here, and court battles occur based solely on property and contract law, without any reference whatsoever to the best interests of the dog.

For example, as was previously reported in this blog, in deciding a lawsuit in Nova Scotia about who would get possession of a longhaired chihuahua named Tiny Tim, the judge noted that “this case is not about the best interest of the dog; it is about who has the better claim to legal ownership. The analysis is no different than it would be if we were talking about a bicycle.”

Similarly, the Ontario Court of Appeal dismissed as a “waste of time, a nuisance, and an abuse of the court’s process” a claim for “joint custody” of a mixed-breed dog named Tuxedo. This affirmed the trial judge’s ruling: the animal would remain in his habitual residence — with the girlfriend — and so the boyfriend was out of luck. The trial judge also noted that “pets are of great importance to human beings. To some people, the relationship with their pets takes on a significance exceeding that of any other. They go to extraordinary lengths to preserve that relationship; even at a cost that some would say is disproportionate. Some may consider them to be children. However, they are not children.”

first dog of California

The new California legislation may have been at least partially inspired by the state’s governor Jerry Brown, a known dog-lover who featured “first dog” Lucy Brown on his website.

For advice on family and fertility law issues, contact Shirley Levitan.