It’s likely few pet owners think of their dog or cat in the same way they think of an armchair or a used Toyota, but the law sure does. At least for now.

When it comes to a court-ordered division of property during a split with a spouse or a significant other, animals generally end up with the person who bought them, whether or not that’s the person who took care of them most or felt most attached. And courts have ruled against allowing for any sort of joint custody or visitation arrangements.

The issue has been tested a number of times in lower court decisions and appeals, though a recent ruling by the Newfoundland and Labrador Court of Appeal opens the door a crack to a new consideration of pets, says law professor and animal advocate Peter Sankoff.

“(Courts) have always treated these animals like a toaster or a computer and they just say whoever bought it owns it. And I think that way of looking at it needs to change,” he told CTV’s Your Morning on Monday.

Sankoff, who teaches law at the University of Alberta and is a board member of Animal Justice Canada, says legal statutes and court rulings need to reflect the reality that many people consider their pets to be family members.

“These concepts of property are very ancient and they’ve never been modernized to reflect the way in which we relate to animals,” he said.

Two of three judges presiding on the Newfoundland case took a traditional view of pet ownership, ruling in March that Mya, a Bernese mountain dog-poodle mix, should go with the boyfriend because he had purchased the dog. His ex-girlfriend had applied for joint ownership, arguing she had supplied most of the care and affection for the dog since the boyfriend was frequently travelling for work.

A third judge, Justice Lois Hoegg, ruled the girlfriend was the co-owner and dogs should not be treated like other forms of property.

"Dogs are possessive of traits normally associated with people, like personality, affection, loyalty, intelligence, the ability to communicate and follow orders, and so on. As such, many people are bonded with their dogs and suffer great grief when they lose them."

Some mediators and social workers who help people negotiate breakups recommend that couples buying or adopting a dog or cat come up with a pet pre-nuptial agreement that sets out how they will handle custody in the event of a split. They also recommend a post-breakup pet co-ownership agreement that sets out expectations.

According to one survey:

  • 61 per cent of Canadians have a pet;
  • 44 per cent of millennials see caring for an animal as “practice” for children; and
  • 34 per cent of married people are more likely to have a pet than singles.

So while many Canadians could find themselves scrapping with an ex over a beloved dog or cat, time and again, court rulings have been definitive that they are property.

A judge in Saskatoon ruled against a pet custody application in 2016, saying: “After all is said and done, a dog is a dog. At law it is property, a domesticated animal that is owned. At law it enjoys no familial rights. For legal purposes, there can be no doubt: Dogs are property.”

An Ontario Court of Appeal judge said in 2005 that a dog “is no different than any other property; for example, a ring or a painting.”

But Sankoff says the argument that pets are simply chattel in a home displays a fundamental misunderstanding of people. And he says courts already consider emotional attachment to property, such as a much-loved cottage or a family heirloom.

“The difference between the cottage and the dog is that the way the law treats it now is that whoever puts the money out of their pocket owns the dog, even though what we know in reality is that couples really make these decisions together,” said Sankoff.

“You don’t buy a dog or a cat lightly. You actually think about it and invest in that decision together. So the idea that whoever puts out money on that day owns the dog, to me, is not a reflection of the way in which people think about their animals.”

The law is constantly adapting to changing social norms. It’s not that long ago that women and children were once considered to be property. Sankoff says recognizing the intrinsic value of pets to their owners is a step forward but it’s probably a long time before the best interests of the dog or cat in a custody dispute would be a basis of a court ruling.

“The truth is, as you point out, we are treating animals more and more like our children than we are as our property. And I think those are the types of changes the law made many, many years ago about children and it wouldn’t surprise me if they did the same here one day.”