Whether it’s a dog or a cat, our pets are a valuable part of the family. During divorce proceedings, the question of “who gets the pets?” isn’t something that immediately comes to mind. However, when emotions are running high it can prove one of the biggest sticking points to reaching an agreement – especially if the couple bought (or adopted) the pet together.

The Position of Pets in Canadian Law

In the opening exchanges of Henderson v Henderson, 2016 SKQB 282, the position of pets (dogs in this instance) in Canadian law was perfectly summarized:

“Dogs are wonderful creatures. They are often highly intelligent, sensitive and active, and are our constant and faithful companions. Many dogs are treated as members of the family with whom they live. But after all is said and done, a dog is a dog. At law it is property, a domesticated animal that is owned. At law it enjoys no familial rights.”

While this clarifies how Canadian law sees pets, it throws up a serious issue. Property, money, assets – all of these types of property can be split in various ways. How does a court of law split a piece of property that can’t be broken into smaller parts? Luckily, there’s precedent to look to…

Dealing with Pets During a Divorce

Under Canadian law, the courts will apply the following criteria in a dispute over pet ownership:

• Pets will not be treated in a manner such as children;
• Courts are unlikely to consider interim applications for pet possession;
• Canadian Courts are unlikely to order joint sharing of the pet;
• That pets are a type of personal property (much like a house or a car)

In real world terms, this mean the person who paid for the pet is the pet’s owner. If both parties to the divorce paid for the dog, courts will usually order one co-owner to buy the other out and pay compensation for their half.

This issue came to the fore in the Newfoundland Court of Appeal in Baker v. Harmina, 2018 NLCA 15. In this instance, Mr. Baker had purchased a dog named Mya. Ms. Harmina, who was his girlfriend at the time, and Mr. Baker both took care of Mya.

After the couple broke up, Ms. Harmina asked the Court if she and Mr. Baker could share custody of Mya following the breakup. Her argument was that she had become a joint owner during the relationship while caring for Mya.

A majority of the Newfoundland Court of Appeal rejected this argument. They turned down her appeal for joint ownership of the animal.

What about the order under appeal, under which the dog alternates homes?  Assuming for the moment that the Court can make such orders, they usually cause more problems than they solve.  An order for sharing does not end the conflict.  Instead it creates a regularly scheduled opportunity for conflict that recurs for the rest of the dog’s life.

Find Out More

Westside Family Law are experts in resolving legal issues involving pets. Our team is standing by to assist. Contact us and we’ll be happy to help!