So, who gets the pets?

Every pet owner would likely agree that our furry friends are considered part of the family. Divorcing and separating pet owners face unique challenges. For all of you COVID puppy owners out there, you know that dogs come at a major expense and commitment. Division of expenses, insurance, care and arguments over who gets to keep the family pet can become overwhelming in divorce proceedings.

Although we might treat them like our children, unfortunately the law does not. Family pets are still treated as personal property. I know what you are thinking, how could this precious face be anything but family. But if you are going to court, it is unlikely the Judge will consider who walks the dog the most, gives them the best treats, or taught them roll over.

What the Judge will look at is who rightfully owns the dog. They will consider aspects like, who paid the adoption fee, whose name is on the veterinary bills, or who takes the majority responsibility over the ownership of the pet.

The British Columbia case of Brown v. Larochelle, 2017 BCPC 115 summarized some useful guiding principles:

[4] Emotion notwithstanding, the law continues to regard animals as personal property.  There are no special laws governing pet ownership that would compare to the way that children and their care are treated by statutes such as the Custody and Maintenance Act or the Divorce Act.  Obviously there are laws that prohibit cruelty to animals, but there are no laws that dictate that an animal should be raised by the person who loves it more or would provide a better home environment.
[14] What I extract from the collective wisdom of these cases and some others is as follows:

(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;

Hopefully one day pets will be recognized as family members and Canada will follow other jurisdictions that have already adopted these laws. In Spain, a new law was passed that considers a pet’s welfare and feelings when couples divorce or break up. Until then, in Canada pets are still considered property and they are governed by the Family Property Act (FPA). If a partner had the pet before marriage, they may be able to argue that it is not matrimonial property and is exempt from distribution (see the FPA, s 23(1) (4)). This exemption of course is limited. Pet parents should always try to work it out themselves first. Keep in mind that because pets are property, Judges will not order that a person be granted “access” to see the pet, so we would highly recommend negotiating with your partner.

Moral of the story is the justice system is not “pet” friendly and has little desire to entertain access and parenting of our furry friends. They will put that decision on the pet owners. You can consider splitting custody if you and your ex are on good communication terms. Be sure to specify the details of the arrangement and have a mutual understanding of expenses and care. In amicable divorces, sharing custody of your family pet can be great for both you, the pet, and help divorced couples maintain a healthy relationship.

Plan ahead with a Pet Prenup

Think of a pre-nuptial agreements as planning for an emergency, no one wants to think that their relationship will end, but it will definitely alleviate some heartache and pain if the relationship does take a turn. If you are making a divorce/separation plan, consider the following:

  • Which spouse works longer hours than the other, or travels more often?
  • Who had the pet first?
  • Does the pet favor one spouse over the other?
  • If you have multiple family pets, maybe split ownership.
  • Consider the possibility of re-marriages, new pets, kids, etc. and how they will fit into your new lifestyle.

Just like kids, as pet parents its important to consider the pet’s best interest. With some planning and a little foresight, you can help make the divorce process more bearable for the whole family.

Contact us at Wells Family Law to discuss pre-nuptial agreements and how to protect your family and pets in divorce/separation proceedings.