Divorce Pet Custody in Canada

What You Should Know About Divorce Pet Custody in Canada

Pets are valued companions and cherished members of the family. When facing a separation, breakup, or divorce, the issue of pet custody is an important topic. While you may consider your pet as family, it is important to understand that the law sees pets in a different way. So, does BC family law treat dogs or pets as children or property? Which factors will the court consider when determining which spouse should serve as the pet custodian?

Our family lawyers at Gertsoyg & Company understand that determining the custody of a pet is usually a sensitive and heated issue during divorce. To most people, pets like dogs and cats are just as important as their children. Many people would do anything to maintain closeness and bond with their dog in the face of divorce or separation.

How BC Family Law Treats Pets at Divorce/Separation

The family law in British Columbia and Canada is evolving regarding how pets are treated during divorce or separation. In the past, courts always considered pets to be pure assets, meaning they treated them as objects. Therefore, a spouse would pay to purchase the pet. However, over time, courts started adopting a more holistic and softer approach to pet custody. Therefore, courts started considering many factors instead of only focusing on who was willing to pay to keep the dog or pet. Most of the factors considered by courts revolved around ownership and expenses. Recently, courts in BC and Canada have started considering the pet’s best interests before granting custody.

Judges seem to adopt different approaches when determining which spouse gets to keep the pet. Therefore, it is crucial to seek legal counsel from an experienced pet custody lawyer or family lawyer to help you understand your rights and options. Your lawyer will advise you on the best approach in determining pet custody and ensure that you are not taken advantage of.

Pet Custody vs Child Custody under BC Family Law

BC family law treats pets, such as dogs and cats, like property and not children. Therefore, the court will not apply the same laws it does when determining the best interests of a child. However, this will vary from court to court. Some judges are starting to treat pets like children and not property, thus basing their custody decisions on the pet’s best interests.

When the Court Considers the Pet a Property

In Brown v. Larochelle (2012 BC case), the court outlines that:

• The court will not treat pets in the same way as children
• It is unlikely that the court will consider an interim application for pet custody/possession
• Canadian courts are unlikely to consider constructive trust remedy or joint sharing as apt
• Courts consider pets a variant of personal property

However, even when acknowledging the above, it is a legal requirement in Canada for pets, particularly dogs and cats, to be considered humanely. They should not be treated in the same manner as an inanimate personal possession.

If the court considers the pet personal property, the person who owned the pet and brought it to the relationship retains it after divorce or separation. The same case applies if the pet was gifted to you or you had prima facie sole possession of the pet. If the judge decides to adopt this approach, he or she will consider who acquired the pet, and the pet will end up with that spouse. If one partner had given the pet to the other as a gift, the one who received the gift retains the pet.

In some cases, both parties may have jointly purchased the pet. In this case, the court will decide who keeps it:

• If the couple owns several pets, the court will divide the pets, and each person will keep several pets
• If there is only one pet, the court must grant custody to only one spouse. In this case, the court must decide whether to treat the pet as property, person, or both.

The Hybrid Method of Determining Pet Custody

The court may adopt the hybrid approach of determining pet custody when they only have the option of giving the pet to one spouse. The hybrid principles are outlined in the case of Baker v. Harmina:

1. The ownership of a pet or dog is more nuanced and complicated than the ownership of a property like a bicycle.
2. According to the hybrid principles, the law considers animals, including dogs, to be personal property.
3. Under this approach, the court resolves disputes between people claiming the right to retain a pet based on ownership or an agreement regarding the pet ownership. The court doesn’t make a decision based on the pet’s best interests.
4. If two parties are contesting the ownership of the pet, the court will consider whether:

• Whether one spouse or both spouses owned or possessed the pet before the beginning of the relationship
• Whether there was an implied agreement or an express of the pet owner made when the couple acquired the pet or afterwards
• The nature of the couple’s relationship when the pet was first acquired
• Which spouse purchased and brought up the pet
• Which spouse cared for and exercised control over the pet
• Who bore the burden of caring for and comforting the pet
• Who was responsible for the costs of the pet’s upkeep
• Whether the original owner of the pet offered it as a gift to the other person at any given point
• What happened to the pet after the status of the couple’s relationship changed
• Whether there is any other indication of pet ownership or a relevant agreement on who should have ownership of the animal

Pet’s Best Interests

The court could also grant pet custody based on the pet’s best interests. In a recent case of Poole versus Ramsey-Wall, the court reviewed the approaches outlined above but decided based on the dog’s best interests. The court did this by listening to both spouses’ evidence concerning the pet’s best interests. The court also listened to testimonies from multiple pet experts who explained who would be the most suitable person to take care of the dog.

When considering a pet’s best interest, the court relies on the idea that if the parties involved would have at any point turned their minds on what would happen to the dog if they were to divorce, they would have agreed that the decision should be made based on the pet’s best interests and humane treatment.

For example, in Brown, the court considered the individual dog’s characteristics, the breed’s nature, and the dog’s condition since the parties separated. In this case, the court established that the dog had bonded with the respondent after the separation. It was also evident that the respondent took excellent care of the dog. Therefore, even if the claimant previously had a strong bond with the dog and had not mistreated it, the claimant was not granted custody.

The judge noted that Ms. Ramsey-Wall cited 4 BC provincial court decisions that focused on the dog’s best interests. However, the court made these decisions for interim custody, awaiting the determination of ownership. However, the judge was satisfied that the law allows the court to consider the dog’s best interests, to which Ms. Ramsey-Wall and Mr. Poole agreed based on the emphasis of their evidence and submissions.

The Bottomline

It is evident that the issue of pet custody is highly contested and uncertain. The court could follow different approaches when deciding custody. The results are clear: either you or your ex-spouse keep the dog. Which steps should you take when faced with the issue of pet custody?

Our lawyers recommend that:

• As much as possible, try to agree on shared pet custody with your ex by negotiating out of court. This way, you are assured of seeing the pet. If the matter proceeds to court, the court will not offer shared custody.
• You and your ex-spouse can agree on a pet parenting schedule that works best for both of you.
• You and your ex-spouse could also consider a buy-out approach whereby one spouse buys out the other’s interests in the pet depending on the pet’s value.

What happens if you have to go to court to decide the pet’s custody?

• Your first step should be to contact an experienced pet custody lawyer. A lawyer will customize your pet custody approach and recommend the best course of action.
• The law on pet custody is highly uncertain. Therefore, you should seek the help of a lawyer to help you focus your evidence and strategy.
• If you have several pets, the court will divide the pets equally between you and your ex-spouse. Therefore, you should only claim half the pets, not all.
• As part of your divorce, you can commence an action in the Civil Resolution Tribunal, Small Claims Court, and Supreme Court.

The issue of pet custody doesn’t have to be handled in court. You should consider negotiation and mediation to agree on pets. Your separation agreement can outline which spouse will keep the pet, who will pay for the pet and a schedule on access and custody to the pet. For more information on pet custody, contact our pet custody lawyers at Gertsoyg & Company.