Pet Custody: Who Gets the Family Pet?

Lawyers frequently see clients getting dragged into legal battles over pet custody, particularly with respect to the family dog. Ruff-ly ten per cent of matrimonial proceedings end up getting hairy over the family pets, but there’s no reason for you and your former partner to turn this dispute into a dog’s breakfast. Understanding how the law operates in these circumstances is the first step to avoiding getting hot under the collar.

Levity notwithstanding, we appreciate the passion that spouses feel about their pets and how seriously they take their wellbeing. Separation from a spouse can create significant stress and having to deal with the potential loss of the companionship of a pet can make that stress more challenging. Solutions often seem difficult to imagine.

The Family Law Act (“FLA”) is the law when it comes to relationship breakdowns. The FLA defines a spouse as either a married person, or a person living with another in a continuous “marriage-like relationship” for over 2 years. A helpful legal discussion of the term “marriage-like relationship” is set out in the recent British Columbia Supreme Court case Williams v. Killey, 2014 BCSC 1846.

Upon separation, spouses occasionally fight over “custody” of their furry friends as they would their children. There are special sections in the FLA that deal with assigning responsibilities over caring for children.

 

French bulldog with two hands divorce isolated

Are pets considered equivalent to children under the FLA?

Defining a pet in legal terms is difficult because of the value we place on the relationships we form with our pets. Owners love their pets, and often have special bonds with them that are deep and meaningful. Many treat them, spoil them, and take care of them as they would a child. However, under Canadian law, pets are not children, nor are they family. Pets are … property. The FLA has special rules when it comes to dividing property that was part of a marriage or marriage-like relationship. Therefore, the FLA controls what happens when a separation involves a dog, although you may find courts reticent to address possession and ownership of your family pets.

How the Family Law Act treats the family pet

The FLA states that each spouse is entitled to “family property” regardless of the spouse’s use or contribution. On separation, each spouse “has a right to an undivided half interest in all family property as a tenant in common.” This means that when spouses separate, any property that is owned at the end of the relationship is owned by each spouse on a 50-50 basis. This includes paintings, jewelry, and……. your dog.

That said, there are exceptions to this rule. Anything a spouse has acquired before the relationship started, or gifts received during the relationship, is “excluded property.”

Can a pet be “excluded property”?

Excluded property is not divided equally like family property. A puppy purchased by you before the relationship started would typically not be divided like a puppy purchased during the relationship. The increase in value during the relationship, of an asset acquired before the relationship began, is what would be divided under BC family law.

However, if the puppy was purchased before the relationship but both spouses spent time and took care of the puppy, it may be “significantly unfair” not to consider it as family property. The FLA has a number of ways to consider whether something is “significantly unfair” including the duration of the relationship and the spouse’s direct contribution to the maintenance or improvement of the property (or in this case the pup).

What you should know is that if you have purchased your dog before your relationship started, or received it as a gift during your relationship, your former spouse may nonetheless be entitled to a share of it if he or she can show it would be “significantly unfair” not to share it.

What about dog support?

If you are forced to share your dog, and you make considerably more money than your spouse, there may be issues when it comes to supporting the dog. Because a spouse with lower income may not be able to fully afford costs associated with their pet, the high-earning spouse may need to transfer money to equalize their positions.

In Boschee v. Duncan, 2004 ABQB 447, for example, a judge ordered the higher earning ex-spouse to pay his former wife $200.00 per month [as an element of spousal support] for taking care of their Saint Bernard dog. The ex-husband had not given his former wife any type of support, although he was making roughly $7,000 per month. This amount was considered to be spousal support.

Legal battles over pet custody

Former spouses have taken each other to court many times over ownership of their furry loved ones. In Kitchen v. MacDonald, 2012 BCPC 9 two former romantic partners fought over their border collie, Laddie. Both loved their dog. Ms. MacDonald referred to Mr. Kitchen as the dog’s daddy, and Mr. Kitchen expressed that the dog was like his child. Ultimately, Judge Frame found that the partners were not spouses, and that Mr. Kitchen’s attachment was “merely a sentimental one.” Ownership of the dog was held to be Ms. MacDonald’s alone.

In Thompson v. Thompson, 2005 BCSC 1604, ex-spouses took their fight over their border collie to court.  The parties argued over whether the dog was purchased by the ex-husband as a gift for the ex-wife. In the lead up to the trial, the ex-husband called his ex-wife to tell her their dog was dead. Despite what the ex-husband had said, the dog was “thankfully, still alive.” Ultimately the judge believed the ex-wife’s story and held that full ownership belonged to the ex-wife.

In Warnica v. Gering, 2004 CanLII 50065 (ON SC), the judge speculated that Mr. Warnica had spent “several thousand dollars” to get a partial interest in a dog named Tuxedo. Unfortunately, there was no evidence that he had been a spouse for the purposes of Ontario’s version of the FLA. The judge held that full ownership would remain with Ms. Gering.

Alternatives to a court battle over your pet

Don’t bark up the wrong tree when it comes to your dog. Courts are expensive, complex and unpredictable. Try to make decisions about your pets without involving a judge. Mediating issues around your pets is by far the better way to resolve these disputes. Sharing time with the pet equitably on a negotiated schedule, sharing costs including potential expensive veterinary bills is all best negotiated with the assistance of mediators or collaborative professionals. Meeting with one of Watson Goepel’s family lawyers will give you a better idea about what to expect in your circumstances. We understand how important your pets are to you.  Before you get set to dig in, paws, and talk to us. We assure you we take pets more seriously than this blog might suggest!

By Micah Goldberg, Articled Student