Most pet owners consider their pet to be a member of their family and not just another piece of property.
Normally when separating from your spouse pets are considered property and are therefore subject to be divided within the overall division of property in your family law case. A pet, therefore, would be subject to the property law principles in the Divorce Act and the Family Law Act.
This means that in British Columbia the courts consider the following when answering the question of, “who gets the pet?”
- Who purchased the pet?
- Was the pet a gift to one of the parties?
- Who has paid for the majority of the expenses related to the pet?
- Is one of the parties the registered owner of the pet?
- Who has had possession of and/or cared for the pet since the parties’ separation?
- Who was principally involved in the pet’s early training?
- Who was principally involved in the pet’s day-to-day care?
Additionally, courts have expressly stated that:
(a) Pets will not be treated in a manner such as children;
(b) Courts are unlikely to consider interim applications for pet possession;
(c) Canadian Courts are unlikely to find that joint sharing or some form of constructive trust remedy is apt;
(d) that pets are a variant of personal property;
As you can see, when a court considers the question of “who gets the pet” the question is more related to who the true owner is and not what arrangement is best for you and the pet. If you and your former partner both want to remain involved in your pet’s life, then it might be preferable to settle your pet custody dispute by consent in the form of a Consent Order or a Separation Agreement. This is because Judge’s tend to want to ensure some kind of finality for the parties while minimizing the likelihood for future conflict. Since, in the eyes of the law, pets are considered property, it is highly unlikely a judge would order some form of shared or joint custody of your pet.
Recent decisions, however, have challenged the status quo. The Court of Appeal of Newfoundland and Labrador case, Baker v. Harmina 2018 NLCA 15, involves a Bernese-poodle mix, Mya, who was “treated as a family member”. The couple had moved in together a short time after purchasing the dog, but when the couple separated a legal battle began over who got to keep her. Although In the end, the majority of the court considered the status quo property argument, Justice Lois Hoegg dissented in part, describing the issue of who owns Mya as being more complex than simply who bought her. Justice Lois Hoegg considered questions like:
- Was the animal acquired during the relationship?
- Who bore the burden of the care and comfort of the animal?
- Who paid for the animal’s upkeep?
- Who cared for it?
This could set the tone for future cases.
In conclusion, Velletta & Company can certainly help you in establishing an adequate way of dealing with the issue, or alternatively, moving forward in establishing your court case. Contact us today!
About the Author:
Jade Fraser grew up in Shawnigan Lake and is very proud to call Victoria her home. Before pursuing her education in law, she completed her undergraduate degree at the University of British Columbia obtaining a Bachelor of Science. After living in places such as Saudi Arabia and France, Jade gained a unique set of experiences which contributed to her decision to travel abroad in pursuit of her legal education. Find out more about Jade by clicking HERE