When we hear of couples separating, we often think about things like the home, the kids, the bank accounts but what about your furry companions? Pets come into our lives and take up a special place as part of the family. It’s no wonder that in a divorce or separation there may be friction regarding who takes “custody” of your very well-loved furry companion.
In Canada pets are considered to be property¹ meaning that the courts will generally look to see who the “owner” of the pet is. The Newfoundland and Labrador Court of Appeal considered this issue in the 2018 case Baker v. Harmina and stated that:
“when two people disagree about who should get a dog, the question is not who has the most affection for the dog or treats it better (so long as both parties treat the dog humanely). The question is who owns it” ¹
In this case the court considered the traditional property approach to dealing with pets and balanced it against what they consider the “social realities” ² of pet ownership. They commented that while Courts should be open to modifying their approach, they cannot do so without considering the “practical implications of the change” 4. They explain that a joint ownership arrangement requiring shared custody would create more problems than solutions.
A 2017 small claims court of Nova Scotia case outlined a few factors that may be considered when determining ownership of a pet4:
• If the pet was owned by one of the parties prior to the relationship
• Any agreements made between the parties
• Nature of the relationship between owners when they got the pet
• Who paid for the pet and who “raised” it
• Who had care and control of the pet
• Who was the majority caretaker of the pet
• Who paid for the pet’s care
• If the animal was gifted
• What happened to the pet once the relationship broke down
• Any other factors the court determines relevant
A BC court took a different approach awarding 5 days per month to one of the joint owners of a pet cat after separation: Who gets Fluffy? Lawyers see spike in pet custody cases as couples split under pandemic pressure
As the law continues to develop in this area the only way to guarantee certainty is to take proactive steps for dealing with your furry companions. Leaving it up to the courts can be costly, time consuming, and difficult to predict the end result.
So, what do you do if you don’t want the courts deciding?
You can set the terms of your relationship and separation via contracts. Pre or postnuptial agreements for married couples or cohabitation agreements for cohabitating couples are a great way to detail how you’d like your pet to be handled should your partnership ever come to an end. For more information about these types of agreements see our previous blog posts:
The benefits of having a prenuptial agreement
Cohabitation Agreements: Why you should have one
If you’re going through a divorce or separation our team of family lawyers is here to help. Give our office a call today at 780.831.7370 or email reception@HayesFryLaw.ca and we’d be happy to set you up for a consultation with one of our Family lawyers.
- Baker v. Harmina, 2018 NLCA 15 at para 12.
- Baker v. Harmina, 2018 NLCA 15 at para 17.
- Baker v. Harmina, 2018 NLCA 15 at para 18.
- MacDonald v. Pearl, 2017 NSSM 5 at para 25.