Articles / Blogs
Written by David Samuels
When an individual is in the process of purchasing or leasing a condominium unit, there are two governing documents that relate to the rules and restrictions of the condominium: the Declaration and the Rules. In most cases, the declaration takes precedence over the general rules. As such, it is imperative for potential buyers or renters, especially those with animals, to review these documents to identify any pet restrictions that may be incorporated. For example, documented pet restrictions will provide information regarding the number of animals allowed per unit or the type of animals permitted.
If there is a rule that prohibits pets in a condominium’s official declaration, an individual will be more restricted regarding what options they have when trying to dispute the rule. The judge in Staib v. Metropolitan Toronto Condominium Corp reasoned that if a condominium were to rely on a declaration to prohibit pets, the rule must be enforced regularly and consistently; otherwise, the rule may not be valid. Furthermore, although rules in a declaration are often binding, there are human right exceptions which can override the condominium’s declaration and allow an individual to retain their pet; for example, if an individual has a service animal. The decision in Waterloo North Condominium Corp No. 198 v. Donner has substantiated this, where it was concluded that the presence of a dog was necessary if a condominium unit owner is dependent on the dog due to a disability.
When a condominium’s prohibition is contained only as a general rule, and not in its declaration, the case of Waddington and Subsection 58(1) of the Condominium Act states that a condominium typically cannot make a general rule banning all pets. If the rule prohibiting pets is not explicitly set out in the declaration, a rule prohibiting pets is not enforceable as it is not deemed as reasonable. In this case, individuals who are facing action as part of a rule prohibiting pets that are not included in the declaration have a better chance to fight the ruling and keep their pet.
This is why potential condo owners who have pets or would like them in the future should carefully read the condominium’s declaration and rules. For condominiums, it means that they should be mindful of what types of pets should be prohibited from living in the building. The onus is on the condominium to explicitly inform unit owners and renters of the applicable rules, and must consistently and regularly enforce them. Failure to do both of these things puts the condominium at risk of having a court reject the restrictions they have placed on pets.
The substance of this article is designed to present a comprehensive example of the subject matter regarding pet removal in a condominium. Specialist advice should be inquired regarding your particular circumstances. If an individual owns a pet or has an intention of doing so in the future, an owner should seek legal advice from a legal representative to confirm any pet restrictions in the declaration or rules prior to committing to a condominium unit.
1 – Metropolitan Toronto Condominium Corporation No. 1352 v. Newport Beach Development Inc., 2012 ONCA 850
2 – Ontario Human Rights Commission, Policy and Guidelines on Disability and the Duty to Accommodate (2009)
3 – Waterloo North Condominium Corporation No. 198 v. Donner, 1997 Can LII 121177 (ON. S.C.)
4 – Niagara North Condominium Corp. No. 125 v. Waddington
Written by: Suzana Gartner and Aram Simovonian
One of the most fascinating human-animal relationships is the one which exists between humans and horses. Horses are an integral part of Canadian society and as a response to the important role they play a complex system of rules has been developed to regulate horse related activities.
Equine law is the law which pertains to all matters relating to horses, such as organizations, activities, businesses and industries; legal services offered in the area of equine law may surround contracts, criminal, animal welfare, negligence, gaming, estate law and many others. The practice of equine law is a very specialized field and animal lawyers can handle the complexities and types of cases, including: contracts (purchase and sale agreements; boarding agreements; leasing agreements; co-ownership agreements) and negligence claims (injury or liability). Animal lawyers have expertise training in animal related matters, can handle horse-related disputes with sensitivity for the client and consider the best interest of the horse (s). Further, a collaborative process can help parties settle their horse-related disputes in a timely and less expensive manner than traditional litigation. However, litigation is proposed when parties are not willing or able to resolve their horse-related disputes through a collaborative process.
There are a number of Federal and Provincial statutes which address equine related matters; of particular interest is the (i) Horse Racing Licence Act (the “HRLA”), (ii) the Ontario Society for the Prevention of Cruelty to Animals Act (the “OSPCAA”), and (iii) the Criminal Code of Canada (the “CCC”).
1) HORSE RACING
Horseracing is not a new concept and it has been a sport for hundreds of years. Ontario made the decision to regulate the horseracing industry by creating the Ontario Racing Commission (the “ORC”). The ORC’s mandate was to govern, direct, control and regulate Ontario’s horseracing industry.
The ORC was subsequently replaced by the HRLA in 2015. The HRLA dissolved the ORC and transferred all matters pertaining to the regulation of horseracing to the Alcohol and Gaming Commission of Ontario (the “AGCO”). The AGCO has 5 regulatory functions in relation to the horseracing industry, specifically:
|1. Officiating Races||The AGCO will appoint 3 Judges/Stewards to supervise horseraces, enforce the Rules of Racing, conduct investigations and impose prohibitions when violations have occurred by way of fine or license suspension.
|2. Ensure Compliance||Investigators/Compliance Officers will administer drug and breathalyzer tests on humans, conduct searches for prohibited items as well as assure compliance with racetrack security standards.
|3. Conduct Investigations||The Investigation and Enforcement Bureau (the “IEB”) may investigate racing violations such as fraud, animal abuse, animal death and will also monitor equine medication programs and enforce orders or rulings made by Judges/Stewards.
|4. Issuing Licenses||The AGCO is responsible for the issuance of licenses to persons and business as they relate to the horse racing industry.
|5. Regulation of Racetracks||The AGCO also licenses, reviews the business plans, and fire safety and health plans of racetracks as well as approves the race dates requested by the racetracks.|
The AGCO has established the Rules of Racing (the “Rules”) which have been developed as per s.5(1) of the HRLA; these Rules are enforced by Judges/Stewards appointed by the AGCO. There are two sets of Rules, (i) Rules of Standardbred Racing, and (ii) Rules of Thoroughbred Racing.
As with all areas of life, the world of horseracing is not free from dispute. There are two adjudicative bodies which hear horseracing disputes as they relate to the HRLA; (i) the Horse Racing Appeal Panel (the “HRAP”), and (ii) the License Appeal Tribunal (the “LAT”).
1.1) THE HORSE RACING APPEAL PANEL
A person who considers themselves aggrieved by a decision of a steward, judge, veterinarian, race track official, racing association official, licensing agent or office or employee of the AGCO, may appeal the decision to the HRAP.
For instance, in a 2017 decision, the AGCO imposed conditions on Mr. Fuller’s license because he administered illegal substances to his racehorse, “Saintpaddysboy”. Amongst other things, the conditions included the following; (i) the obligation to keep the peace and be of good behaviour (ii) the obligation to allow AGCO Investigators access to Mr. Fuller’s stable area at any time in order to conduct searches for illegal medication or drugs and (iii) the obligation to allow the AGCO Investigators to seize any illegal drugs which may be found. Alongside the conditions placed on his license, Mr. Fuller was fined and his license temporarily suspended; “Saintpaddysboy” received a temporary suspension from being able to race.
1.2) THE LICENSE APPEAL TRIBUNAL
The LAT’s mandate is to adjudicate appeals involving compensation claims and licensing disputes. The LAT adjudicates licensing appeals which pertain to over 25 statutes, including the HRLA.
2) ANIMAL WELFARE
The people of Ontario…believe that how we treat animals…helps define our humanity, morality and compassion as a society. Horses are legal defined in a number of ways, they may be athletes, vehicles, livestock and even law enforcement animals. The protection the law offers horses is entirely dependent on their classification, meaning, the level of protection may be low or high depending on the categorization of the animal.
Below is an examination of the protections offered to horses under the CCC and the OSPCAA.
2.1) THE CRIMINAL CODE OF CANADA
Causing unnecessary suffering to animals is prohibited under the CCC by way of s.445.1; this section is purposely broad and explicitly prohibits the encouragement, promotion, arrangement or assistance in activities that would cause unnecessary pain or suffering to a bird or animal. The penalty for this offence ranges from imprisonment of no more than 18 months (summary), and imprisonment of no more than 5 years and/or a fine not exceeding $10,000.00 (indictable).
The scope of s.445.1 encompasses horses, however, due to the unique status, horses are offered further protection than the majority of other animals. The development of this protection was a result of an Edmonton Police Dog, Quanto, being stabbed to death while chasing a suspect in a parking lot. As a response to Quanto’s death, Parliament enacted the Justice for Animals in Service Act (Quanto’s Law), which amended the CCC to add further protection for law enforcement, service and military animals. A law enforcement animal is defined as “…a dog or horse that is trained to aid a law enforcement officer in carrying out that officer’s duties”. Punishment for causing injury to a law enforcement, service or military animal ranges from imprisonment of no more than 18 months (summary), and imprisonment of no more than 5 years with a fine not exceeding $10,000.00 (indictable). Canada recognized the need to offer protection to animals under the CCC and further recognized the need to protect animals which serve a particularly important role in our society, such as horses, at least in their law enforcement capacity.
2.2) THE OSPCAA
Horses are offered protection against harm under the provincial OSPCAA. The Ontario Society for the Prevention of Cruelty to Animals (the “OSPCA”) is governed by the OSPCAA and their mandate is to prevent animal cruelty and provide relief from cruelty to those animals who have been subject to such treatment. In similar spirit to the CCC, the OSPCAA has a general section which prohibits causing or permitting the causing of distress to any animal. The OSPCAA also has a more specific section which is dedicated to prohibiting harm directed at law enforcement animals, specifically horses and dogs.
A person who finds themselves aggrieved by an order made under the OSPCAA may appeal to the Animal Care Review Board (the “ACRB”). When making decisions, the ACRB’s mandate is to ensure that the welfare of animals is of paramount consideration.
Although the legal protection offered to horses has developed, unfortunately, there have been instances where these animals may still be categorized as food. For example, in a recent CTV News article, Mr. Scott Vivian, the owner of the “Beast” restaurant in Toronto, served a horse tartar dish which, not surprisingly, resulted in public outrage. Mr. Vivian argued that animals raised for food should not be singled out based on their utility. In other words, she explained that if society is outraged with horse meat on their plate, they should be outranged to discover chicken, pork or beef or on their plate as well. In fact, horse meat is widely unpopular and the majority of Canadians regard horses as companion animals and working animals and find it repugnant to be served a dish with horse meat. As such, horses should be regarded as majestic animals that have served Canadians for hundreds of years. Horses have taken on many guises in Canadian history; they have been in wars, have been used as vehicles, they have been trained for athletic sport and now they protect Canadians as law enforcement animals. Although legal protection for horses has come a long way, the fight for animal liberation and equality is far from over.
 https://www.psychologytoday.com/blog/the-truisms-wellness/201607/no-horsing-around-about-the-human-equine-bond; https://www.equestrian.ca/cdn/storage/resources_v2/XTEHyRosaHidTWQeX/original/XTEHyRosaHidTWQeX.pdf. It is estimated that horses and horse related activities contribute more than $19 billion annually to the Canadian economy (a 2010 report finds).
 S.O. 2015, c. 38, Sched. 9.
 R.S.O. 1990, c. O.36.
 R.S.C., 1985, c. C-46.
 The ORC was governed by the Ontario Racing Commission Act, 2000, S.O. 2000, C.20., which was repealed on April 1, 2016.
 ibid at s.5.
 Horse Racing License Act, supra note 3 at s.43.
 Horse Racing License Act, supra note 3 at s.7(1).
 License Appeal Tribunal Act, S.O. 1999, c. 12, Sched. G at s.2(1).
 Horse Racing License Act, supra note 3 at s.8(1).
 Fuller (Re), 2017 CanLII 57443 (ON HRAP). Mr. Fuller administered a Class III drug (Hydroxy Metoprolo to the racehorse.
 ibid, “Saintpaddysboy” is ineligible to race from August 17, 2017 until October 3, 2017; Mr. Fuller was suspended from August 17, 2017 until September 19, 2017.
 Provincial Animal Welfare Act, 2008, S.O. 2008, c. 16 – Bill 50 at Preamble; this Act amended the OSPCAA.
 Criminal Code, supra note 5 at s.445.1.
 S.C. 2015, c.34.
 Criminal Code, supra note 5 at s.445.01(2).
 Ontario Society for the Prevention of Animal Cruelty Act, supra note 4 at s.3.
 ibid at s.11.2(1).
 ibid at s.11.2(5).
 ibid at s.17(1).
 ibid at s.16(1).
“In a more perfect world there would be special laws recognizing pets as living, feeling creatures with rights to be looked after by those who best meet their needs or interests, and there would be specialized accessible courts to determine the ‘best interest of the dog,’ as there are for children in the family courts…In this less perfect world, there is the small claims court operating on principles of property law, treating pets as ‘chattels’ not very different –legally speaking—from the family car.”1
In the recent Halifax case of Kemp v. Osmond, a small claims court adjudicator, Eric Slone, considered a dog’s choice to stay with her owner, in his ruling which awarded custody of a nine-year-old, mixed-breed dog named Lily. The parties were a couple, Sally Kemp and Laurie Osmond, who owned two dogs. Lily, the dog at issue in this case, was purchased by Kemp, prior to the couple eventually moving in together. When the couple’s relationship ended, they traded Lily back and forth for years. During this time, issues arose about how to handle the health care of Lily, and they increasingly argued about custody. One day, Osmond, tried to pick up Lily from Kemp’s house and an argument ensued. Osmond called Lily to his car, she eagerly obliged, he drove away and refused to return her. This action is what led to this case coming before the small claims court.
Current Canadian law regards animals as property, so Slone had to decide who had the stronger claim to ownership. Some factors that a Court considers when determining the ownership of a dog is: Who purchased the dog? Under whose name is the dog registered? Who trained the dog? Who paid for all the expenses (e.g. vet, food, toys). At first, it may seem as if Kemp had a stronger claim because she purchased Lily prior to them living together. But as Slone explains in his decision, the ownership changed over time. Over the years, Osmond paid thousands of dollars in veterinary bills for Lily, took responsibility of her nutritional needs and became her main caretaker. It was also the view of Slone that Kemp was careless in leaving Lily outside and unleashed on two known occasions. Osmond called Lily to his car at two different times and she went. This eroded Kemp’s claim of ownership because it showed a disconnected bond and lack of responsibility for Lily. In the end, Osmond had the better right to ownership. Slone attributes this final ruling as being made by Lily herself, when she jumped into his car twice. Slone made a point to focus on the nature of a human’s relationship with their pet and contemplated the interests of Lily. This was a fascinating analysis because it was a novel attempt at recognizing pets more as objects of moral concern, rather than seeing them just as their legal classification of property. The decision of who gets custody of a pet should not be discerned by who has a stronger claim to ownership, but rather the best interest of the animal.
Slone mentions that he has ruled on other similar cases and is once again, forced to rule on who gets custody of a pet. This is because there is nowhere else for people to take these disputes. Slone then considers the usefulness of a hypothetical specialized accessible court, to determine the best interest of pets. However, the logistics and details of such courts are not explained. Although access to courts would help shift the focus of the laws from ownership to that of the best interest of the animal, changes in the laws themselves would be a better place to start.
In Canada, pets are considered personal property. The provinces have jurisdiction over animals as part of their power to regulate property laws. Meanwhile, the federal government uses its criminal law power to create offences in the Criminal Code, which categorizes cruelty to animals as “crimes against property.” Although the statutory offences of cruelty to animals have remained stagnant for over a century, their enactment conceded that animals deserve some sort of legal protection. The controversial question nowadays is what is their appropriate legal status under the law? Arguably, the ability to protect the best interest of animals will continue to be hindered, so long as they are property. This is because the property status of animals will always rise above their welfare, because there is a presumption in the law that people are superior to animals and entitled to use them as a means to their ends.
Unfortunately, animals cannot be both liberated and owned at the same time. There needs to be some middle ground where society can acknowledge that animals are not morally equivalent to tables and chairs, but also not grant them something as supreme as human rights. This could be a new class of nonhuman rights where animals have more rights than they currently do, but legally are considered something like children. People who choose to have pets would have a legal responsibility to not mistreat them and to provide a basic level of care. In the same vein as the ruling in Kemp v. Osmond, society needs to make a better determination as to what is our appropriate relationship to pets and all animals. The treatment of animals must be written in the language of rights, with them being recognized as beings of moral concern with the right to life, protection from injury and suffering and the right to live according to their nature. In other words, animals must be legally recognized as sentient. Merriam-Webster defines the term “sentient” as, “responsive to or conscious of sense impressions; aware; finely sensitive in perception or feeling.”2
The classification of animals as sentient already exists in some jurisdictions in our country and around the world. In these jurisdictions, there has been a shift from ownership of animals as property, to humans standing in a role of guardian. San Francisco has already declared that pets are not property and that the people with whom they live are not their owners, but their guardians, and are not entitled to dispose of them as they see fit.3 Alaska has also looked to the best interest of pets involved in divorce matters in the newly amended, Amendment HB 147.4 This law is an embodiment of Slone’s vision for the law to move away from placing pets with whomever is deemed to be the more rightful legal owner. The European Union has also reached an agreement that all animals are to be protected and respected as sentient.5
In Canada, Quebec passed Bill 54 which also defines animals as sentient.6 This legislation comes from a province with some of the most flexible animal welfare laws and has long been considered the ‘puppy-mill capital’ of Canada. In contrast, Ontario has some of the strongest animal welfare laws in the country (which regrettably, still is not saying much). This brings hope that our province will follow suit and adopt views like these jurisdictions and Slone, and enact laws affording animals the basic right to be considered sentient. A sentient status will be a move in the right direction away from Courts deciding legal ownership, but rather the best interest of the animal.
 Kemp v. Osmond, 2017 NSSM 25 at para 3, 4
 Merriam-Webster, definition of “sentient,” accessed from: https://www.merriam-webster.com/dictionary/sentient
 National Post, The Sentient Debate: Animal Legal Rights At Centre Of Recent Court Cases, accessed from: http://nationalpost.com/news/canada/the-sentient-debate-animal-legal-rights-at-centre-of-recent-court-cases/wcm/c7963bb3-b78e-4dc7-8ce8-6d580cb748b2
 Animal Legal Defense Fund, Alaska Legislature Becomes First to Require Consideration of Animals’ Interests in Custody Cases, accessed from: http://aldf.org/blog/alaska-legislature-becomes-first-to-require-consideration-of-animals-interests-in-custody-cases
 Assemblee Nationale du Quebec, Bill 54: An Act to improve the legal situation of animals, accessed from: http://www.assnat.qc.ca/en/travaux-parlementaires/projets-loi/projet-loi-54-41-1.html
In a precedent-setting case, a Quebec Municipal Court has found a Montreal woman guilty of wilfully causing suffering or injury to an animal pursuant to s.445(1)(a) of the Criminal Code. On July 3, 2011, Marina Palakartcheva left her 5-year old bulldog, Ares in the back of her car while she was inside a nearby shopping mall. A passerby noticed the dog in distress and called 9-1-1. Two police officers showed up, smashed the window and tried unsuccessfully to revive the unconscious dog. The officers testified that the dog was so hot that when touched it was almost like touching a hot stove. The veterinarian that treated Ares testified at the trial that the dog died as a result of heat stroke and given the weather conditions of that particular day, even a 10-minute period in the car could have been fatal. During the trial, there were conflicting reports as to how long Ms. Palakartcheva was gone for. Ms. Palakartcheva testified that he had only been gone for about 30 minutes and had left windows cracked, however, according to the witness who called 911, she was gone for over an hour.
The case is remarkable for the reason that it now sets a precedent that the Crown no longer must demonstrate that the accused intended for the animal to suffer for there to be a conviction under s.445(1)(a) of the Code. As the law stands now, it is a crime to cause an animal pain through “wilful” neglect, a mental element that makes prosecution difficult as the Crown must show that the accused intended the animal to suffer. However, the court in the Palakartcheva case relaxed this mental element to include “recklessness” or “gross negligence”. In other words, although the Crown conceded that Ms. Plakartecheva did not intend for Ares to suffer, they submitted that her behaviour represented a marked departure from the standard of care, significant enough to warrant a conviction.
This verdict represents a big victory for animal rights advocates who have argued that the legislation surrounding animal cruelty is far too narrow and hard to prove, making convictions difficult. By allowing recklessness to be substituted for wilfulness, there is a much higher chance of successful convictions.
Although this case is certainly unique it does not represent the first time that a Canadian court has relaxed the intent requirement in an animal cruelty case. In a 2015 case from the British Columbia Provincial Court, Emma Paulsen a dog walker was charged with animal cruelty after 6 dogs died of heat stroke when they were left in the back of her truck. Ms. Paulsen initially claimed that the dogs had been stolen from the back of her truck, before later admitting that she had left them in the heated vehicle unattended, while shopping and returned to find they had perished due to the heat. In their submissions the Crown conceded that Ms. Paulsen had no intention to kill or injure the dogs, however, they argued her actions of leaving them in a hot car went beyond simple negligence and reached the threshold of willfully reckless. The Crown pointed to the modified subjective standard that is to be used and drew the Court’s attention to the fact that Ms. Paulsen, given her occupation as a dog walker, should have known better than to leave dogs in a heated vehicle. In the end, Ms. Paulsen submitted a guilty plea to one count of animal cruelty and one count of mischief and was sentenced to six months in prison. Along with the prison sentence, Ms. Paulsen received a lifetime ban on looking after others animals and a ten-year ban on owning animals herself.
The Paulsen and the Palakartcheva case signal a positive shift in how courts are starting to view animal cruelty. The new viewpoint is not dissimilar to the changes in the Code that were advocated by Nathaniel Erskine-Smith in the proposed Bill C- 24- The Modernizing Animal Protections Act. The Bill was aimed at substantive changes to Canada’s existing, insufficient animal protection legislation. One of the Bill’s most notable changes was to amend the Criminal Code to include an offence for people who cause unnecessary suffering to an animal by gross negligence rather than the current standard of “wilful neglect”. Despite overwhelming support from major animal welfare organizations, the Bill was ultimately defeated. However, the two cases mentioned above represent that the law is not settled in this area, and some courts have started to adopt the new standard, in cases where a marked departure from a reasonable standard of conduct has resulted in the suffering or death of an animal. Hopefully, these cases represent a trend in the jurisprudence towards more robust animal protection laws that are desperately needed in Canada. At the very least, these two cases should serve as a lesson that leaving your pet in a heated vehicle is an incredibly dangerous and irresponsible act and one that will not go unpunished.
Pet owners should never, under any circumstance, leave their dog in a car. The health and welfare implication of doing so have severe and fatal consequences. It is important for pet owners to understand the severity of this negligent and reckless behaviour. It has been recorded that on a hot day the interior of a car can have a temperature increase of 19˚F within ten minutes. Further, it was noted in a study conducted by the Louisiana Office of Public Health, that cracking the window had little no effect on the rapid and dangerous temperature increase of the interior of a car. A case that made headlines recently on the 680 news where an individual left their dog in a car and left the air-conditioning on. This careless and unfortunate act lead to the car catching fire and the dog dying. If you do not need to bring your dog in a car, leave them at home where they are safe.
From a medical standpoint, your dog is susceptible to extreme dehydration and heatstroke which occurs when your pet’s heat-dissipating mechanism is unable to accommodate the excessive amount of heat inside the car. Dogs thermoregulate their body through panting, and also through their paws which possess a minimal number of sweat glands. A dog trapped inside a vehicle on a hot day is restricted in its ability to effectively manage its body temperature. Within veterinary journals and textbooks, the accepted normal values for a dog’s body temperature is below 39˚C. When a dog is exposed to extreme temperatures and its cooling mechanism is not effectively releasing heat, even a 3˚C increase to their body temperature can be lethal. Therefore, on a hot day the air in a car is progressively increasing in temperature and being recycled, this prohibits a dog’s ability to decrease their body temperature. If this heat stress persists for an extended period of time a dog will eventually suffer vital systemic failures of the kidney, heart and brain. This multisystem organ failure will lead to death.
An animal, whether it be a dog or any other species, trapped in a hot vehicle, with restricted ability to move, breathe and remove themselves from confinement is a severe detriment to their welfare. From an animal welfare perspective, the affective state of an animal trapped inside a hot vehicle is severely compromised. The affective state of an animal relates to the freedom from hunger and thirst; pain, injury and disease; and fear and distress. Domesticated animals rely on humans to provide an environment that will ensure they will not suffer from unpleasant states such as pain, fear and suffering. As pet owners, it is our responsibility to ensure our animals are provided with proper management, responsible care and humane treatment. Leaving a pet in a car, is a failure on the part on the owner to show reasonable care and can leave them criminally liable.
Domesticated animals rely on humans to provide an environment that will ensure they will not suffer from unpleasant states such as pain, fear and suffering. As pet owners, it is our responsibility to ensure our animals are provided with proper management, responsible care and humane treatment. Leaving a pet in a car, is a failure on the part on the owner to show reasonable care and can leave them criminally liable.
Scientific research and societal interest and knowledge of animal welfare have developed into an important field in contemporary North American society. As animals play a more significant role in the lives of Canadians, animal welfare becomes increasingly more important. A 2016 survey conducted by the Canadian Animal Health Institute estimated that 41% of Canadian households have at least one dog, and 37% of households have at least one cat. Household pets are referred to many as ‘members of the family’. Unfortunately, couple divorce or separation is equally as abundant in Canada, and will consequently have an effect on the family pet(s). This poses the question of what happens to the family pet(s) after partners separate? Is litigation the best route to determine custody and ownership? Or will mediation provide separating parties with the best results.
Animals are considered to be property under Canadian law, therefore when a pet custody case is brought before a judge, the animal(s) in question will frequently be treated no different from an inanimate object. Quebec is the first and only province in Canada to take action against these current laws by passing Bill 54. This bill changes the property status of animals and instead identifies them as sentient beings. In Ontario, animals are still considered property and therefore litigation does not provide a conciliatory environment for parties to reach any form of custody agreement. Since animals are property, a judge may rule in favour of the individual who purchased the animal and simply compensate the opposing party with the monetary value of the animal.
The Ontario judicial court system is already incredibly delayed and backed up, which has led to nearly 43% of cases being thrown out. Litigating a pet custody dispute will not only add another layer to the delays, but if a case is brought before the court a judge will likely assess the case using property law and not take into consideration the best interest of the animal. An alternative route, that would put priority on the animal’s interests, would be mediation. Mediation is used more readily in child custody disputes, because it allows parties involved to reach a more amicable solution, and keep the child’s best interests a priority.
In Canada, excluding Quebec, animals are considered to be property, and if a pet custody application is brought before a judge it will often be rejected and ridiculed for tying up valuable resources. Judges may also make comparisons between an animal and an inanimate object and insult applicants for treating their pet disputes equivalently to a child custody disputes. This demeans the value and importance an animal plays in a person’s life. An example of this behaviour and mentality is reflected in the Henderson v Henderson case, a widely publicized decision on the interim possession of two beloved dogs. Justice Danyliuk of the Saskatchewan Queen’s Bench forcefully rejected the application that the custody decision be treated like that of children. In reaching his decision on that issue, Justice Danyliuk relied on two principles: the recognition and treatment of children as human beings and pets as animals under the law; and the current understanding of pets as property within the law. He argued that the ownership analysis (factors relating to payment and purchase of the property) should be the only consideration in determining custody.
Further, Justice Danyliuk failed to consider that animals are substantially different from other property, in that they are offered protection from cruelty and neglect. These laws that protect animals are the defining differences between the dogs referred to in this case and a set of butter knives (the property he chooses to compare them to). Animal protection legislation actually demonstrates the similarities between animals and children, a point which Justice Danyliuk chooses to ignore. Consequently, his refusal to make a determination of visitation rights because dogs are “not human children” is not in line with today’s societal views of the value and meaning pets have in an individual’s life. By ignoring the importance pets have in a human’s life, and denying an individual visitation based off property analysis may result in harming the psychological well-being of the humans seeking such a remedy. The fact that animals are protected from cruelty, neglect and mistreatment should propel a review of custody to consider the best interests of the animal. This case demonstrates the lack of awareness and the ignorance the judicial system has with regards to animals and the role they play in society.
The mentality of this judge and the manner in which he dealt with this case, does not deviate far from the norm. However, there have been new developments outside of Canada that have taken charge of how pets are dealt within a divorce case. On January 2017, Alaska’s Governor Bill Walker signed new legislation that amends the state’s divorce law and has major implications to animals and their welfare. This new amendment disallows a judge from considering or comparing an animal to property, and takes into account “the well-being of the animal” into consideration. What this law also allows is the option of pet joint custody arrangements. The Washington Post received a statement from David Favre, an animal law professor at Michigan State University, stating that “for the first time, a state has specifically said that a companion animal has visibility in a divorce proceeding beyond that of property — that the court may award custody on the basis of what is best for the dog, not the human owners.” Hopefully, these new amendments will perpetuate further discussion and change nationwide so pets are no longer compared to as property under the eyes of the law.
 Companion Animal Health. (2016). Retrieved January 16, 2017, from http://www.cahi-icsa.ca/companion-animal-health/
 Bill 54: An Act to Improve the Legal Situation of Animals. 1st Sess, 41st Leg, Quebec, 2015
 Rushowy, K. (2016, November 21). Ontario court delays threatening 6,000 criminal cases, Conservatives say. The Star. Retrieved January 17, 2017, from https://www.thestar.com/news/queenspark/2016/11/21/ontario-court-delays-threatening-6000-criminal-cases-conservatives-say.html
 Henderson v Henderson (Henderson), 2016 SKQB 282, 2016 CarswellSask 579, accessed from Westlaw Canada, para 44.
 In Alaska, Divorce Courts Must Now Consider Pet Wellbeing. (2017, January 26). The Huffington Post. Retrieved February 3, 2017, from http://www.huffingtonpost.com/entry/alaska-divorce-pet-law_us_588a1ef3e4b0024605fe3246
–The Modernizing Animal Protections Act
Bill C-246, the Modernizing Animal Protections Act (“Bill”) is an Act to amend the Canadian Criminal Code (“Code”), the Fisheries Act, the Textile Labelling Act, the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act and the Canada Consumer Product Safety Act. The Bill was introduced by liberal MP Nathaniel Erskine-Smith (“Erskine-Smith), for Beaches East Yok, as a private member’s bill on February 26th, 2016.
This Bill is the first of its kind to provide substantive changes to animal protection legislation in over a century. In fact, up until now, sadly, Canada has lagged behind other developed countries and has some of the weakest animal protection legislation. Canada’s animal welfare laws have not substantively changed since 1892. Canada needs to make legislative changes as this is not aligned with the majority of the Canadian population’s values toward animal protection.
Presently, the Bill is in its second reading as of May 9, 2016. If it proceeds to committee this fall, Erksine-Smith has agreed to consult with stakeholders on improving the language of the Bill. As he stated, “If we have concerns about unintended consequences in the language, my intention is not to affect accepted animal-use practices, so let’s fix the language so it doesn’t.”
The Bill consolidates three pieces of legislation and aims to achieve the following: 1) A ban on the importation of shark fins. 2) A ban on the importation and sale of cat and dog fur, and a requirement to label the source of fur. 3) Modernize existing animal cruelty offences in the Code.
- A Ban on the Importation of Shark Fins:
The Bill aims to put an end to the cruel practice of shark finning, that is, the importation of shark fins that have been removed from a shark carcass and its dead body is discarded back into the ocean. More than 100 million sharks are killed every year with fins from up to 73 million sharks used for shark fin soup (a delicacy in the Chinese community). Although shark finning has been illegal since 1994, importing fins from other places without regulations is permitted. In fact, Canadians represent 1.5 to 2% of the global market. This issue was previously brought to the attention of the House of Commons in 2013, but was narrowly defeated at second reading by just five votes. In a 2013 poll, 81% of Canadians supported a ban against shark fin importation.
- A Ban on the Importation of and Sale of Cat and Dog Fur and Source Labelling:
The Bill would follow in line with the European Union, Australia and the United States, by banning the sale of dog and cat fur and require source-fur labelling for companies in Canada. Unfortunately, Canada does not have any restrictions on fur imports, except for endangered species. In fact, the Canadian Textile and Labeling Act’s requirement is that fur products be labeled “fur.” Industry Canada reports that 60% of all fur garments that are imported to Canada come from China with trade worth approximately $12 million annually.
In 2010, the U.S. tightened its ban by requiring that all fur products be labeled for country of origin and species. Unfortunately, Canada has no similar requirements and thus has become a dumping ground for cat and dog fur. Furthermore, dogs and cats used for this purpose have been documented to live in horrific conditions: cramped and filthy cages, killed by strangulation and other inhumane methods of slaughter. Further, their pelts are often a byproduct of the cat and dog meat industry. A Toronto Star investigation in 2012 revealed that cat and dog fur in Canada is used for trim on coats, lining in children’s books, toys, etc. Clear labelling laws and a cat and dog fur ban will help stop the suffering of countless beloved companion animals for fashion.
Fortunately, there has been wide support towards the Bill’s efforts to ban the importation of shark fins and a ban on selling cat and dog fur and source labelling. Most of the concerns are on the meaning of the proposed changes to the Code. Specifically, the Ontario Federation of Anglers and Hunters oppose the Bill and Conservative MP Robert Sopuck has stated this part of the Bill is akin to ‘a Trojan horse devised to advance a radical animal rights agenda.’ Of course, this is far from the truth. In fact, the Bill does not affect hunting, fishing and farming; generally accepted animal-use practices rather it protects animals from negligent abuse and cruelty.
- The Modernization of the Animal Cruelty Offences in the Canadian Criminal Code:
The Bill proposes to amend the Code to close loopholes concerning animal abuse, animal fighting and bestiality, creates a gross negligence offence for animal cruelty and would make it easier to prosecute puppy mill operations in order to prove owners wilfully neglected animals. Further, the Bill would increase the penalty for repeat animal abusers, with a lifetime ban on owning an animal for anyone convicted of animal cruelty for a second time.
These proposed amendments to the Code were originally drafted by the Department of Justice in 1999 in consultation with animal use organizations. On three separate occasions, there was near identical legislation that passed the House at third reading and passed third reading at Senate on one occasion. Similar legislation to update the cruelty provisions of the Code were also introduced to Parliament by Federal Liberals with other bills, however, defeated at Senate.
The most substantial change to the Code would be the introduction of a new offence for people who cause unnecessary suffering to an animal by gross negligence. Currently, it is a crime to cause an animal pain through “willful” neglect. This mental element makes prosecution difficult. The new standard of gross negligence would only require animal cruelty to be caused by conduct that is a marked departure from a reasonable standard of conduct. This is the standard applied to every other criminal negligence offence under the Code.
There are two terms that present the most difficultly in prosecutions for animal cruelty: “wilfully” and “unnecessarily.” Currently, an offence has to be both wilful and cause unnecessary pain, suffering or injury to the animal. There may be sympathy for an animal that has suffered, but the law is only concerned with the conviction of human offenders and will not punish someone who did not intend to harm that animal.
Further, the Bill aims to update the definition of ‘bestiality’ to mean all sexual activity between a human and an animal. This change is necessary upon a recent Supreme Court of Canada decision that held the criminal act must require penetration. In a 6-1 decision, the court upheld an acquittal of a man charged with forcing his stepdaughter to have sexual relations with the family dog. The court said that if Parliament meant to define the crime of bestiality more broadly, it would have done so. However, Justice Abella noted in her dissenting opinion that to limit the charge of bestiality to only sexual intercourse with animals, whose anatomy permits penetration, would be to erode laws that protect all animals from abuse.
Lastly, the Bill creates a new part of the Code, “Offences against animals.” Although the animal cruelty provisions are removed from the property section, there is resistance from those who fear that changing how animals are regarded under the law could jeopardize hunting, fishing, farming and trapping rights. Essentially, the concern is that the welfare of animals will rise to the same moral threshold as for people, however, this shift is a symbolic change that would still recognize animals are property, but different from other types of property. Specifically, it does not change animal’s legal status as property; it recognizes the widespread view that animals deserve legal protection, regardless of whose property they happen to be.
In conclusion, the passage of Bill C-246 would not interfere with accepted animal use practices in Canada. However, those who oppose the Bill are concerned these new offences will result in frivolous charges. For example, methods of slaughter for agriculture to cooking lobster by placing them alive in a boiling pot of water. The new test of “brutally or viciously” forces the court to consider the method of killing chosen and whether there is a lawful excuse. Lawful excuse is not defined in the Bill and neither is “recklessly.” Further, opponents argue that the interpretation of these provisions will be left in the hands of the courts, which will lead to the criminalizing sporting, agricultural, commercial, scientific and religious activities involving animals. However, the Department of Justice, explained these amendments would not impact lawful activities involving animals. The proposed amendments would operate similarly to existing sections of the Code. It is time to update the Code so that it is in line with Canadian values. Recently, an Environics poll revealed that ninety-two per cent of Canadians surveyed agreed the Code should be updated to make it easier to convict people who commit acts of cruelty to animals.
Lastly, the Bill is a positive step to modernize animal protection legislation in Canada and has put animal welfare issues to the forefront of federal politics. Although Prime Minister Trudeau has vocally opposed the passage of the Bill, perhaps due to the pressure from opposition groups such as hunters, anglers, farmers, the fur industry, sport fisherman, etc., other liberal politicians have vocalized their support. Further, animal protection legislation will eventually be updated so that Canadian laws are aligned with Canadian values and we can be proud of the treatment of our fellow animals. It may be that incremental steps should be taken, for example, the shark fin ban and ban on cat fur first, and the more contentious but equally important legislation to update our archaic animal cruelty laws in the Code is next. Although it may take more time, social pressure, and consensus building with the stakeholders, these changes will happen one day. The passage of this Bill would require wide support from members of Parliament and the Senate to become law.
As you take the time to read this article, please consider taking action by educating others, sharing posts of these needed changes on social media, signing petitions such as change.org or creating your own, writing to your local MP, and vocalizing your support for the Bill. You can make a difference. As Erkskine-Smith stated well, ‘Canadians are compassionate people who care about animals and our laws should reflect our values.’ We should applaud MP Erksine-Smith for his ambitious efforts to introduce modern animal protection legislation in Canada.
Suzana Gartner, J.D., LL.M. (ADR)
Gartner & Associates Animal Law
Summer law student
 Members of Parliament spar over animal welfare Bill C-246, online: http://www.cbc.ca/news/canada/saskatoon/animal-welfare-bill-canada-1.3558210. There is doubt the Bill will pass due to contentious issues related to updating the animal cruelty provisions in the Code (discussed later in the paper).
 Supra. Footnote 1
 Graham, David., How Canada gets dog and cat fur from China, online: Toronto Star <https://www.thestar.com/news/world/2012/06/30/how_canada_gets_dog_and_cat_fur_from_china.html>
 Supra. Footnote 2
 Supra. Footnote 1
 R v. W. (D.L.)  SCC 22
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Madon, Michelle M., It’s Time to Modernize Animal Rights in Canada with Bill C-246. Online: http://www.huffingtonpost.ca/m-michelle-nadon/animal-rights-canada_b_10774816.html.
 Office of MP Robert Sopuck, Legal Analysis of Bill C-246, online: Keep Canada Fishing <http://www.keepcanadafishing.com/legal-analysis-of-bill-c-246-pmb-by-liberal-mp-nathaniel-erskine-smith/>
 Supra. Footnote 1
 Supra. Footnote 12
Pet law deals with how the law relates to, or impacts, animals and their guardians. Although pet law cases typically involve cats and dogs, this area applies to other companion animals, including birds, rabbits, and horses etc. Additionally, the broader term of “animal law” encompasses companion animals, as well as wildlife, animals used for entertainment, those raised for food and research and animals used in professional settings such as the horse racing industry. With approximately one in every two households in North America sharing their home with a dog or cat, there is no doubt this is an important area of law that is rapidly evolving.
Pet law combines several different legal areas and deals with issues that can affect even the most diligent pet owner. Examples of when an owner might need to retain a pet lawyer include: pet custody disputes, alleged dog bite incidents, veterinary negligence claims, damages claims for the wrongful death or injury to their pet, breeder disputes, wills/estate matters for surviving pets, housing disputes with “no pets” or size restrictions, breed discrimination, and more.
For example, a situation in which pet guardians may require legal assistance is in pet custody disputes of divorcing or separating couples. However, these types of disputes are not restricted to marriage. Courts have dealt with pet custody cases between family members, former partners, boyfriends and girlfriends and even roommates. In these cases, it is important to have legal representation assist in the custody determinations of these beloved companions. In Canada, courts were originally dismissive of such claims however the tides are beginning to change as more pet related cases are litigated.
Mediation of pet disputes is an alternative to litigation that is more cost-effective, less time consuming, and pet mediators will consider the ‘best interest’ of the pet, can craft a pet custody agreement with the parties that leaves them more satisfied and often results in an amicable resolution rather than leave the decision of the pet custody dispute solely to the courts.
Although pets are treated as property in the eyes of the law, most pet owners would agree they are integral members of families. In fact, there is growing recognition of pets as sentient beings rather than property in the law as Quebec recently passed legislation which states that “animals are not things. They are sentient beings and have biological needs.” However, as long as the law in Ontario and other provinces continues to treat pets as property, guardians need to know their legal rights and obligations associated with pet ownership to ensure the well-being and protection of their beloved companions.
Gartner & Associates Animal Law