Pets are often considered to be members of the family. The intense emotional bonds people form with cats, dogs, or other family pets can lead people to think of pets as if they were children, and to expect the law to do the same when family law disputes arise.
BC family law requires that parenting arrangements for children be based on the children’s best interests. Much in the same way, parties who are separating want arrangements for custody or access to family pets to be determined by what is best for the animal. The fact of the matter is that upon separation or divorce in BC, pets are viewed as chattel, which means that property law applies to determine ownership. If the pet is jointly owned, the law treats the pet as a piece of property to be divided between the parties on dissolution of the relationship. No custody/access orders for pets The courts do not have jurisdiction to make custody or access orders for pets or to make a declaration of trust with respect to a family pet. In Brown v. Larochelle, 2017 BCPC 115, which was an unsuccessful claim for possession of a dog or shared possession on an alternate week basis following breakdown of a relationship, Cowling, P.C.J. affirmed that the legal system fundamentally treats issues as to pet ownership the same as a dispute over personal property. While there is a legal requirement that animals (and in particular dogs and cats) be treated “humanely” (unlike any inanimate personal possession), the law with respect to pets is as follows: • 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 find that joint sharing or some form of constructive trust remedy is appropriate; and • Pets are a variant of personal property. The parties in Brown had jointly adopted the dog while residing together, shared any expenses for the dog while they were together and more or less were equally involved in looking after the dog. When the relationship broke down, the girlfriend moved out and the boyfriend retained exclusive possession of the dog. The girlfriend’s claim for joint ownership or time-sharing of the dog was unsuccessful, though the court ordered the boyfriend to pay her half of the adoption fee. Determining ownership of a pet In the eyes of the law, a pet is an item of personal property, which means that when two people disagree about who should get a pet, the question is not who has the most affection for the pet or treats it better (so long as both parties treat the pet humanely). The question is who owns it. If the court finds that the pet is jointly owned by the parties, the court cannot then proceed to make orders for “access” to the pet. The court only has jurisdiction to order that the party who keeps the pet pay the other party half the value of the pet. On the other hand, if one party owns a pet and brings that pet into a relationship or if one party is gifted or acquires sole possession of a pet during a relationship, then absent exceptional circumstances, that pet remains their property when they leave the relationship. For example, in Kitchen v. MacDonald, 2012 BCPC 9 the claimant asked the court for a declaration of ownership in a border collie dog currently in the possession of his ex-girlfriend, and further for an order specifying possession time of the dog for each party. The parties had been in a relationship that involved a period of cohabitation and treated the dog as their “child” during their relationship, but this did not create a beneficial or legal interest in the dog for the claimant. It was the girlfriend who originally picked the dog out, she was the one who had taken it to its vet appointments, appeared on vet records as its owner, and paid for all other costs associated with the dog’s needs including its licensing. The court found that she was the sole owner of the dog. The claimant's interest in the dog was “merely sentimental.” Consider mediation or negotiation to reach agreement regarding pets As BC courts do not have jurisdiction to make custody or access orders for pets or to make a declaration of trust with respect to a family pet, our family lawyers recommend that, wherever possible, parties mediate or negotiate to deal with issues pertaining to the family pet on breakdown of a relationship. A Separation Agreement can address issues such as who will keep the pet and who will pay for the pet, and it is open to the parties to agree on a schedule for “custody” and “access” (i.e. ,shared possession/time with the pet). If your relationship has broken down and you and your ex are in a dispute with respect to your cat, dog or other pets, contact us (toll-free) at 1-855-852-5100 for a consultation. Our lawyers can assess your situation and provide the legal support that you need to come to a resolution.