A few weeks ago, Spain passed a law requiring its courts to consider the welfare of animals when deciding on their custody in cases of separation or divorce. The new Spanish law even allows shared custody schemes for animals.
Posted at 12:00 p.m.
And Spain is not alone. Several other states, including Switzerland and the US states of New York, Maine, Illinois and Alaska, have adopted this type of legislation. Such a law is also desirable here in Quebec, which is currently carrying out a fundamental reform of its family law.
In Spain, these changes were made as part of a wider reform of the Civil Code aimed at changing the legal status of animals. From now on, animals are no longer considered in Spanish law as simple movable property, but rather as “living beings endowed with sensitivity”. It should be noted that in this regard, Québec has outstripped Spain by several years. Indeed, in 2015, the National Assembly unanimously adopted the Law to improve the legal situation of animals, which amended the Civil Code of Quebec to recognize that “animals are not property”, but rather “beings endowed with sentient beings” with “biological imperatives”.
However, in Quebec, in conjugal matters, animals continue to be subject to the same rules as those that apply to movable property.
It is therefore the spouse who acquired the animal who is entitled to claim ownership at the time of separation or divorce. The courts do not take into account the interest of the animal, nor even the attachment of the latter to the other member of the couple, when they must decide who will have custody of it.
Contract
To fill this gap in Quebec family law, the Montreal SPCA recently launched a campaign that encourages couples to sign a contract it developed regarding pet care in the event of a breakup. The agreement does what the Civil Code of Quebec still does not: guarantee that the determination of the custody of a pet is made not according to which spouse concluded the contract of purchase or adoption of the animal, but rather according to its interests.
Specifically, the contract stipulates that a number of factors must be considered in deciding custody, including the amount of time each spouse has spent with the animal during the relationship, the ability of each member of the couple to continue to support the animal, the degree of emotional attachment the animal exhibits to each spouse, and any history of animal abuse or other conditions that pose a risk to the safety or well-being of the animal ‘animal.
The Minister of Justice and Attorney General of Quebec, Simon Jolin-Barrette, is currently carrying out a fundamental reform of Quebec family law. Last October, a first bill dealing with filiation and amending the Civil Code in terms of personality rights and civil status was tabled in the National Assembly. Mr. Jolin-Barrette will soon undertake the second part of his reform, this time concerning issues relating to conjugality.
This is the perfect opportunity to follow the example of Spain and adopt a new provision in the Civil Code of Quebec that specifically deals with the care of animals in the event of separation or divorce in order to ensure that this question is decided taking into account the interests of the animal.
Such a provision would not only promote animal welfare, but it would also save a lot of grief for members of couples going through a break-up who, overnight, can find themselves completely deprived of contact with an animal that they nevertheless consider to be a true member of the family. This type of provision would also increase the internal consistency of our law.