In family law, we divide property, but find children stable homes.
Children are, of course, people. The Court’s focus on children in a family going through change is what is in the children’s best interests. In most cases, this means equal parenting, or significant contact with the non-primary parent. As such, some divorcing families spend years and decades interacting with their ex-spouse, long after the divorce and the creation of separate lives.
There is a relationship to maintain. One of the most important relationships. A child to his or her parent.
But what about the relationship with man’s best friend?
For the last three years of their marriage, the Schindles owned an Australian Shepherd named Jasper. Jasper built a deep bond with both parties. Both parties walked and played with Jasper. Both parties fed and trained him.
But when the parties split, Jasper went with Ms. Schindle. The parties tried to co-parent the dog, ensuring that Mr. Schindle had an hour every Saturday. This lasted for three Saturdays.
The parties had their reasons for separating, and those reasons were on show at the dog park. Ms. Schindle decided that it was best for her to end the contact time between Jasper and Mr. Shindle. Mr. Schindle applied to Court for continued contact every Saturday, but he acknowledged the “bond” between Ms. Schindle and Jasper, and did not seek to take Jasper for himself.
The trouble, however, is that Jasper is not a person. Not under the law at least.
In Schindle v Schindle, 2021 ABQB 99, Justice Hollins commented that while “we can all understand the emotional connection that pet owners have to their pets”, she confirmed that “the law is very clear that family pets are and must be treated as property”. Her Ladyship denied the Mr. Schindle’s Court Application. She pointed out to the parties that neither had actually applied for ownership of Jasper. Justice Hollins confirmed that Ms. Schindle had possession, that Jasper was joint property, and that either party could make their claim for ownership further along in their divorce.
This decision is absolutely correct, as “the law is very clear”. Alberta follows the “Common Law”, which is our system of law inherited from the English and shared with Australia, New Zealand, and 49 of the 50 United States. The decisions in the thousands of courts throughout this Common Law world are relevant to each other; if a court in, say, Manchester, made a decision on similar facts with similar laws, perhaps the same reasoning would be appropriate in a court in Alberta. There have been attempts within the Common Law world to recognize animals as persons; perhaps most recently, an attempt to use an ancient Common Law rule called habeas corpus for chimpanzees in confinement.
These attempts are typically unsuccessful, and most efforts to improve the lives of animals come from legislation passed by Parliament, not judicial reasoning by the Courts.
However, the largest Common Law jurisdiction (or court system) in the world is India. Several court decisions there have held that animals, and even non-living things (such as rivers) are “persons”. And there was once a time when children were looked on by the law more as property than persons; now, children do not make the decisions, but the decisions that are made must be made in their best interests. Jasper will never speak in Court to tell us what he wants to do; but, perhaps one day, a Court will focus on a pet’s best interests. And the process of separating couples will become ever more complicated…