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| Victoria Shroff |
At nearly the exact same time as the Pope was expounding his controversial opinion about companion animals, new animal welfare laws were enacted in Spain (a heavily Catholic country), establishing pets as basically family members at law. Essentially, pets in Spain are now rightly no longer classified as objects, but as sentient beings who can express emotions and feelings. In other words, animals are recognized as being more than property, as having the capacity to be someone instead of something. Specifically, dogs, cats and other companion animals are now classified as “living beings” who are “endowed with sensitivity” rather than being deemed mere property under the law.
In Spain, a judge is to look at the family pet just as they would for other family members in “pet custody” disputes. An animal’s best interests should be considered when determining who should look after the family cat, dog or bird. The new animal welfare rules amend civil procedure laws, the country’s civil code and mortgage legislation. Owners must “guarantee” that their pet’s welfare will be paramount. In the case of cruelty, that individual will likely be refused custody.
In October 2021, a Madrid judge awarded joint pet custody for Panda the dog to an unmarried couple after examining all the issues, not just applying a basic ownership test for awarding custody. The court looked beyond who bought the animal or paid for their adoption fee. The Madrid court ruled that Panda would have “co-caretakers,” closer to guardians, rather than employing words connoting property like “co-owner.” Both parties were held “jointly responsible” for Panda the border collie and would share Panda one month on and off. This is helpful for an animal’s intrinsic welfare as a living being.
The argument in Panda’s case utilized the 1987 European Convention for the Protection of Pet Animals, ratified in 2017, to underlie the argument that animals are not mere property. The court was able to review Panda’s welfare, emotional bonds between Panda and the parties.
While it’s not all good news for all animals in Spain as the new laws do not appear to address the bloodsport and cruelty that is bullfighting, and it’s also unclear whether the new laws will help millions of farmed animals, it is gratifying to see animal sentience laws catching on. Several EU states, including France, Austria and Switzerland, consider animals to be sentient beings and a U.K. Animal Welfare (sentience) bill is in the works to becoming law. For a discussion on the importance of animal sentience laws, please see: Recognizing animals in Canada as sentient.
Without question, animal sentience laws are an access to justice win for animalkind.
Back in North America, several U.S. states have legislation for courts to be able to peel back the property curtain and to consider the best interest of the companion animal during a divorce, along the lines of what occurs with human children.
What about the family pet in divorce cases in Canada? Pet custody cases are on the rise in many parts of Canada (we've certainly noticed an uptick on pet custody cases at my Vancouver animal law firm) and elsewhere. While we are largely still looking at the application of an ownership formulation for cases that go to court in Canada, some courts have expressed recognition that the family pet is akin to or is a family member.
For the most part though, courts are still looking at an animals’ pet custody fate through a property ownership lens. (Please see Animals: Family at home, property at court.)
Since 2015, the Civil Code of Quebec has, on paper, recognized animals as sentient, but despite this, pets have still been treated as property when a couple splits up. The Montreal SPCA has set up a pet custody contract under their Lasting Relationship Campaign for couples to sign and have ready in case their relationship goes sour. It’s an interesting idea and could directly benefit an animal’s welfare, saving difficulties down the road for all concerned. The fact is that both dogs and cats generally live over 10 years, longer than many marriages last, so the pet custody agreement that folks sign now could curtail future uncertainty for the pet and the humans if the relationship implodes.
In my animal law practice, we aim to settle the vast majority of our animal law cases by agreement, including pet custody cases, as this results in good outcomes for the animals in question. With an agreement that is tailor-made and sets out who gets to have custody of the pet, who pays for vet, food bills, toys and the like, there is more certainty and less stress.
Importantly, it’s usually better for the pet and their humans to be able to formulate an agreement accounting for more than simple ownership and property parameters because, as Newfoundland and Labrador Court of Appeal Justice Lois Hoegg wisely stated (in dissent) in the landmark pet custody dispute over Mya in Baker v. Harmina [2018] N.J. No. 65: “... I am of the view that the ownership of Mya involved much more than a determination of who paid for her at the time of purchase. The ownership of a dog is a more complex and nuanced question than the ownership of, say, a bicycle.” (para. 52).
The new Spanish animal sentience laws seem to have accounted for the complexity and nuanced questions in pet custody disputes by understanding that animals are family. I might have called the Spanish animal sentience laws a “bullseye,” but I dislike the term.
V. Victoria Shroff is one of the first and longest serving animal law practitioners in Canada. She has been practising animal law for over 20 years in Vancouver at Shroff and Associates and she is adjunct professor of animal law at UBC’s Allard School of Law and Capilano University. She is recognized locally and internationally as an animal law expert and is frequently interviewed by media. Her new book, Canadian Animal Law is now available at LexisNexis Canada store. Reach her at shroffandassociates@gmail.com, @shroffanimallaw or LinkedIn.
Photo credit / Adam Smigielski ISTOCKPHOTO.COM
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