The case Haywood v. Carrasco 2016 BCPC 71 reflects the state of the law pertaining to the “custody” of pets.
When the common-law couple split up, they shared the dog, Kali, until one occasion, while under the common-law ex-husband’s care, Kali escaped the fenced yard and was found running on the Barnet Highway.
The common-law ex-wife decided that the common-law ex-husband could only see Kali in her presence.
The common-law ex-husband then applied for an order to have Kali returned to him on the basis that he had actually purchased Kali. The dog, Kali, was treated as “property” under the Small Claims Act, but when the Judge applied the balance of convenience test, he found that “competing claims for animals could and should take into account different factors from cases involving inanimate object, including the best interests of the animal concerned.” The Judge also found that “the nature of the relationship between an owner and a pet dog is qualitatively different from the relationship between an owner and all other forms of personal property. Most people view a pet as a member of their family to be cared for until death, not a possession to be bought and later sold in a garage sale or on craigslist or given away to charity when it is worn, outgrown, out of date or no longer needed or desired by its owner.” He also noted that animals are not treated like objects in other legislation such as the Criminal Code where it is an offence to “willfully cause […] unnecessary pain, suffering or injury to an animal or bird”, and the Prevention of Cruelty to Animals Act, which establishes that the BC Society for the Prevention of Cruelty to Animals can apply to a court for interim custody of an animal, and in such cases the best interests of the animal can be taken into account.
The court concluded that “while a dog is a form of personal property and is certainly not a person at law, the law reflects society’s expectations as to how an animal should be treated and the relevance of the best interests of the animal in proceedings related to its custody. The treatment of Kali in the custody of Mr. Haywood and the best interests of Kali are factors that I can and must take into account in considering the balance of convenience in this case.”
The court found that there was evidence of neglect while in the common-law ex-husband’s care and no similar concerns regarding the common-law ex-wife, and that it could be distressing to Kali to remove her from the common-law ex-wife’s custody and place her in the custody of the common-law ex-husband’s care with only twelve weeks remaining until the trial with its uncertain outcome.
The court therefore ruled that “it is in the best interests of Kali to remain in the custody” of the common-law ex-wife until trial.