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Who gets custody of the family pet when a relationship ends?

By Graeme Kluge
 
There is little doubt that people consider their pets to be much more than just animals. They are extensions of the family. But to Alberta courts, they are considered mere property. This can come as a surprise to many couples when their relationship ends and it is time to decide who gets their beloved companion.

Fighting for custody of the family dog may seem trivial but it does happen and it can be costly in terms of time and money. Not to mention the emotional expense. In one much publicized case, a San Diego couple spent more than US$200,000 in legal fees in a battle over a pointer-greyhound they had adopted from an animal shelter. An animal behaviourist was retained and a video chronicling a day in the life of the dog was presented as evidence. In the end, the wife won sole custody and her ex returned to the pound to find a new pet. 

Laws are changing, but not in Canada

In Europe and the parts of the United States, attitudes are changing when it comes to pet custody. Alaska, California, Illinois, New Hampshire, and New York are among those states that have laws requiring judges to consider what is best for the pet in custody battles. This year, Spain followed Portugal and France to introduce laws to consider a pet’s welfare when their humans’ relationship ends.

However, in Alberta, as in courts across Canada, pets are still considered chattel. This means if you do not have an agreement in place that deals with custody and care of your pet prior to separation, courts must rely on Section 7 of the Family Property Act to make a decision.

The notion that pets are property is reflected in court decisions across the country. In Nova Scotia, one small claims court adjudicator, commenting on the care given by a woman fighting for custody of a long-haired Chihuahua, stated “that is not the point.”

“This case is not about the best interest of the dog; it is about who has the better claim to legal ownership. The analysis is no different than it would be if we were talking about a bicycle,” he wrote.

Courts are not totally unsympathetic 

In a separate case, the same adjudicator wrote that “the love that humans can develop for their pets is no trivial matter, and the loss of a pet can be as heartbreaking as the loss of any loved one.” Still, emotions must be set aside, he noted.

“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 Family Law Act or the Divorce Act,” he continued. “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.” 

In Baker v Harmina, 2018, the Court of Appeal of Newfoundland and Labrador noted that the issue of “determining the ownership of family pets when families break apart can be challenging.”

“Ownership of a dog is more complicated to decide than, say, a car, or a piece of furniture, for as my colleague observes, it is not as though animate property, like a dog, is a divisible asset,” the judgment states. “But dogs are more than just animate. People form strong emotional relationships with their dogs, and it cannot be seriously argued otherwise.”

Interestingly in her dissenting opinion in the case, Justice Lois R. Hoeg suggested that more consideration should be given in pet custody cases. 

“I am disturbed by the notion that courts should not spend their precious time and resources determining the ownership of dogs. Litigation over the ownership and possession of dogs is far from unknown to the courts, which is an indicator that the ownership and possession of dogs is very meaningful to people,” she wrote. “In this regard, I emphasize the emotional bonds between people and their dogs, and say that fair decisions respecting the ownership and possession of dogs can be much more important to litigants and to society than decisions respecting the ownership of a piece of furniture or a few dollars.

“While I do not wish my remarks to be interpreted as advocating or encouraging parties to litigate the ownership and possession of their dogs, I say there is no principled reason why people in a dispute over a dog cannot avail of the courts for assistance in resolving such a dispute.”

Consider your options

Some couples entering into a marriage or an adult interdependent partner (AIP) relationship may decide on a cohabitation or prenuptial agreement, setting out how property, such as a pet, should be divided in the event of a breakup. These are agreements we at Demas Schaefer Family Lawyers can help you with. However, those already in a relationship may not think it is necessary when they purchase a pet. After all, if you are buying a dog with your partner, you may assume that your relationship is healthy and the last thing you need to think about is who gets your furry friend when things end.

If you are dealing with a custody issue, litigation should be your last option. It is expensive and stressful. It is also unpredictable. While some judges may be sympathetic to pet owners and their plight, at the end of the day Alberta courts have no choice but to deal with your faithful companion as property. It is also important to remember that the pandemic led to unprecedented court closures and backlogs and family court was not spared. Pet custody cases are likely to be low on a judge’s list of priorities.

If you cannot reach a suitable arrangement, you should consider mediation, looking at all your options, including shared custody. We have trained mediators ready to help you through this process, which has proven to be extremely effective. 

The court will look at a number of factors

One of the biggest considerations will be who originally paid for the pet. Who pays for food and other expenses, such as veterinary care, is also important. However, these expenses may be shared, making it difficult to determine custody.

Promoting the best interests of the child is the guiding principle of the Divorce Act, so if children are involved, their feelings can influence a judge’s decision on where the pet ends up. The same would apply if one partner has a propensity toward violence.

As a side note, if you have custody of a pet, it may be possible to seek support for maintenance costs. In a Court of Queen’s Bench of Alberta decision, a woman was awarded $200 a month to care for her St. Bernard after her former partner was unable to take it.

We are here to help

Deciding who gets the family pet can lead to stress and turmoil in a breakup. At Demas Schaefer Family Lawyers, we have the knowledge and experience to guide you. We offer a free 15-minute telephone or video consultation where we can discuss your case and explain your options. Contact us today for an appointment.


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