Custody of a Furbaby After Separation: Pets as Property

It is very clear that people love their pets. There are now pet spas and salons and pets can even get acupuncture. When divorce happens the issue of who gets Fluffy often arises and some people also want to know if they can claim support for pets like they would for children.

How pets are treated in a separation was outlined by the BC Provincial Court in Kitchen v. MacDonald, 2012 BCPC 9:

[2] […] I have jurisdiction to make a finding of ownership with respect to the dog. If I find that it is jointly owned, I have jurisdiction to order that the party who keeps the dog pay the other party half the value of the dog. I cannot find that two parties own a dog and then proceed to make orders for “access” to the dog. As stated in a number of the cases presented to me but most eloquently in the Ontario Superior Court of Justice decision of Warnica v. Gering dated December 17, 2004:

[19] Of course, any pet is somewhat different, in that it does not readily lend itself to physical division. A pet could be sold, with the proceeds to be divided in accordance with any determination as to the parties' respective interests therein; however, that is something that few would want. Certainly, it is something that no one wants here. A pet could be shared, as happened in the case of Rogers v. Rogers. In my view that would be akin to a custody access/order. Whether in the Family Court or otherwise, I do not believe that any court should be in the business of making custody orders for pets, disguised or otherwise. To the extent that any of my colleagues may feel otherwise, I respectfully disagree. Obviously, I acknowledge that pets are of great importance to human beings. Strong bonds develop between them and the human beings that look after them. To some people, the relationship with their pets takes on a significance exceeding that of any other. They go to extraordinary lengths to preserve that relationship; even at a cost that some would say is disproportionate. Some may consider them to be children; however, they are not children.

The law understands that the love people can develop for their pets is no trivial matter. However, our courts continue to regard animals as personal property. There are no special laws governing pet ownership that would compare to the way that children are treated by statutes (Gardiner-Simpson v. Cross, 2008 NSSM 78).

Therefore, when it comes to who gets the family pet, a determination of who was the actual owner of the pet must be made. The party that can prove ownership keeps the pet, or it may be jointly owned and then they may both have rights to it. As mentioned above, if a pet is found to be joint property, as would normally be the case if acquired during marriage, then the Court would likely require one party to purchase the other’s interest in the pet. It would be prudent then, when buying or adopting a pet, to determine early who will keep possession in the event of a relationship breakdown.

Another option is to determine how to share the pet, which would include a sharing of expenses. If you are going to share a pet 50/50 you will need to determine what expenses are reasonable and how these would be shared if not on a 50/50 basis. In any case, sharing of a pet is a matter best kept out of court as any schedule will work best when you can limit any conflict between the parties. Also, courts really do not like to deal with this issue.

With regards to the question of if you can make a claim for pet support? The best answer is: it depends on the situation. Because pets are treated as property, the party taking the pet is responsible for the cost of caring for the pet. The same way the party who takes a vehicle is responsible for the cost of maintaining that vehicle. However, in certain circumstances, monthly pet payments have been made. In Boschee v. Duncan, 2004 ABQB 447 a $200 monthly payment for the care of the parties’ St. Bernard was ordered in addition to the $1,500 per month spousal support payments. However, in this case there was no dispute that the St. Bernard was Mr. Duncan’s but he was unable to find accommodation for himself and the dog. Therefore, Ms. Boschee was obliged to care for it, and was granted pet support to care for Mr. Duncan’s “property”.

If you have any questions or concerns about the care of your pet after a separation, give the Lawyers at Crossroads Law a call.

By Mat Wirove