Pets are treasured members of our families. They provide companionship, lots of love, and are always a welcome presence around the home. When a married or common law couple makes the decision to separate, an uncomfortable question that must be broached is – who gets the cat or dog?
In this week’s blog, we’ll take a look at how this tricky issue is handled by Canadian law. Precedent shows us that courts can approach the issue in one of several ways.
Family Pets and Separation Under Canadian Law
The position of pets in Canadian and BC law is an evolving one. In the past, pets would be treated as property and whoever paid to purchase this property would typically get to keep it. Over the years, this position has softened, with judges adopting a more holistic and all-encompassing approach to ownership.
This has recently evolved into the best interests of the dog or cat being given consideration in the decision, much like a BC family court would approach decisions relating to children involved in a separation.
Let’s examine some precedents to unravel how judges can approach disputes over pet ownership.
An Example of the “Pet as Property” Legal Approach
In 2012’s Brown v. Larochelle case, a couple who had earlier separated had a dispute over ownership of a three-year-old Korean Jindo dog named Luna. The judge presiding over the case took the view of pet ownership as personal property, ultimately giving custody to the person they felt had the better property claim:
“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.
“As such, slightly distasteful as it may be in the case of two loving and devoted pet owners, I must consider which one has the better property claim.”
Following the Best Interests of the Pet
In 2021, an interesting case came before BC’s Civil Resolution Tribunal involving the custody of a cherished mixed-breed dog named Tessa.
Poole v. Ramsey-Wall saw evidence provided from both parties in the dispute, alongside multiple dog experts who provided testimony relating to the ongoing care of the dog. The adjudicator argued that taking the best interests of the dog into account was relevant as both parties would have wanted things to go that way had they known they would separate:
“Brown v. Larochelle, which is binding on me, considered the dog’s best interests based on the idea that, had the parties turned their minds at any time to what would happen to the dog if they broke up, they would have agreed that the decision would consider the dog’s best interests and its humane treatment. “In Brown, the court considered the breed’s nature and the individual dog’s characteristics, and the dog’s condition since the parties separated. The court found that the dog had cemented her bond with the respondent after the separation, and was well cared-for by the respondent, so despite the claimant having previously had an equal bond with the dog and no evidence of mistreatment, the claimant was unsuccessful.”
Ways to Protect Yourself in a Pet Custody Scenario
Examining the two cases above, it’s clear Canadian courts can interpret pet ownership laws in different ways. Pet owners have the option of resolving the dispute themselves without going to court, and this is an approach we recommend investigating before resorting to litigation. Here are three options to consider before taking legal action:
- Consider agreeing with your ex-spouse to split custody of the pet
- Create a shared calendar so both parties can chart their pet access time and date
- Have one party consider a buy out of the other party’s interest in the pet
Going to Court to Solve a Pet Custody Dispute
If you’re going through a divorce or separation and want to understand your options relating to pet custody, the team at Westside Family Law are standing by to assist. Contact us and we’ll be happy to help!