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Old March 13th, 2004, 12:35 AM
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Tails of woe: pets front and centre in custody battles

SUSAN SCHWARTZ
The Gazette

Pulled in Two Directions: Roxy the basset hound. "Some people are prepared to fight ... for a pet they hold as dear as a child," one lawyer says.

We all know couples who fight like cats and dogs. Increasingly, there are couples who fight over cats and dogs. For custody.

In one such case handled by Montreal lawyer Helen Sanders, each of the spouses in a divorcing couple was seeking sole custody of their two young children. Both also wanted the dog.

"My instinct was that the dog was not wanted by the parties out of sentimental considerations for the dog, per se," observed Sanders, a partner in the firm of O'Hanlon, Sanders, Cheng. "In this heated litigation, the parties considered that if they got the dog, they would get the children, as the children were so attached to the dog."

Ultimately, the parties agreed the dog would go where the children went. When they settled on joint custody - for the children and the dog - it probably made the transition between the two homes easier, Sanders noted in an e-mail.

In another file, a couple was having a tough time separating amicably. They were arguing over their property, which included their dogs. "The problem was that both my client and her ex-boyfriend had come into the relationship with a dog each. And these were big dogs."

The dogs had grown close. At the heart of the dispute, Sanders explained, was whether each dog would return to his original owner or whether the owners could share them.

Her client wanted joint custody, "as she didn't want the dogs to pine for each other." The ex-boyfriend wanted a clean break. Ultimately, they came to a detailed agreement that provided for joint custody on a three-month trial basis, with a proviso that if it didn't work, both dogs would go and live with the ex-girlfriend. If she, in turn, couldn't handle the two dogs, she would "transfer custody" of both to her ex-boyfriend.

Fortunately, Sanders recalled, there was "a very nice and canine-friendly lawyer on the opposite side who took the concerns of the clients seriously."

She believes both cases were resolved by good and sensible agreements. And she is relieved both were settled out of court. "Thank goodness. I don't know what a Superior Court judge would have made out of a canine litigation."

Although most pet litigation is, in fact, resolved before a judge gets involved, trials to decide who gets pets when a couple separates are becoming more common in the United States, and to a lesser degree in Canada.

Gigi, a pointer-greyhound adopted from a San Diego shelter, became the centre of a two-year custody battle costing more than $100,000 in legal fees. The court awarded temporary custody to the husband, with weekend visits to the wife - a decision reversed after an animal expert was hired to observe the dog spending time with each spouse. Following a trial featuring a "day-in-the-life" video of Gigi, the wife was granted full custody.

Last year, a divorced Saskatchewan couple ended up in court over their dog. Judge Gerald Kraus awarded joint custody of their 11-year-old husky, rejecting the husband's claim that the dog was a "pre-marriage asset" and legally his.

Gerald Heinrichs, one of the lawyers who argued the case, said it could signal a trend. "It is quite possible we will see a new area of litigation cropping up in the future," he told City Dog, a Toronto publication, last summer. "Some people are prepared to fight very hard for a pet they hold as dear as a child."

You get it or you don't, but there are pet owners who say they feel closer to their animal companions than to any human ones. Yet in law, it's not entirely clear whether a pet should be treated like a child or as property. And the difference determines whether the court considers the pet's best interests or who paid for him. Rover may sleep on your bed and cry when you're sad, but companion animals are considered property in Canada.

As it becomes obvious that people don't think of their pets the way they do, say, their dining-room tables, animals are slowly gaining status in the legal system. In Canada, proposed amendments to the Criminal Code would take them out of the property section. In some American cities and at least one state, pet owners are now called pet guardians. Dozens of law schools, including Harvard and Yale, offer animal law classes with sections on pet custody.

Obviously, it makes more sense to try to resolve disputes over pets on one's own, and most people manage to. Decisions should be based on what is best for the animals, said Laurie Betito, a clinical psychologist and host of the CJAD radio program Passion, and it's important to consider such factors as time, space and financial resources in figuring out where they should live after a couple separates.

But since couples are capable of fighting over knives and forks when they split up, it does not surprise Tobi Klein, a Montreal therapist who also does divorce mediation, when they fight over dogs and cats.

Their feelings for their pets might be genuine enough - but the animals can become pawns in unpleasantness between duelling spouses. And there are some sad stories.

Like when the health or welfare of an animal suffers as the result of the rancour between spouses.

Montreal veterinarian Joann Katz recalled the case of a dog belonging to a divorcing couple. The husband had moved out of the family home to an apartment, where he couldn't keep pets. The dog needed surgery, but the wife, who didn't want the dog in the first place, didn't want to contribute to the cost. Since they owned the dog together, they had to make a joint decision.

"It was a huge mess," Katz recalled. Ultimately the dog, who had other health problems, had to be put down. "When something like that happens, it is really sad for the animal."

And dogs can suffer separation anxiety or depression when they are separated from beloved masters. Judy Kuriansky, a clinical psychologist and longtime radio personality known as Dr. Judy, told me of a man who left his wife for another woman, leaving behind the couple's two huskies. One of the dogs, who was particularly attached to the fellow, began to misbehave badly - knocking over furniture, chewing it, sulking in corners, not eating. It was obvious the dog was "talking through his behaviour," said Kuriansky - evident he was distraught at being abandoned.

And pets can be used "for people's selfish reasons," said Montreal lawyer Maria Battaglia, who has encountered divorcing parents who say they plan to buy a pet in order to encourage their children to spend time with them.

But there are happier tales, like the one of the Montreal doctor whose first dog was a miniature Maltese he and his girlfriend acquired. "I took one look at him - and fell in love," he recalled. But much as he loved the Maltese, when they got a second dog, a Sheltie, a few years later, he was besotted. "I bonded completely with her. Dogs have one master - and she was always more my dog," he said.

So when they split up, it seemed natural that he keep the Sheltie, she the Maltese. Their separation, mind you, was amicable and they remain friendly. Otherwise, he acknowledged readily, "it could have become nasty."
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