Pets are just property in the eyes of the law
By Jenna Lalani, Estate Planning and Family Lawyer, Vancouver
While the law is continuously evolving, pets are still considered property in the eyes of the law.
If you are preparing an estate plan and deciding who gets which assets, the question may come up, “can I make someone take care of my pet?” Additionally, a divorcing couple dividing their assets at separation may also need to divide their pet. In a family law case the question becomes, “who gets the pet after separation?”
One party may argue that they gave the pet more care and affection, but the court does not typically take this into consideration because in the eyes of the law, pets are property and not comparable to children.
Instead, the court will consider evidence of ownership. This can include evidence of who paid for adoption or breeding fees, who paid for food and medical expenses and who made the important decisions for the pet. Therefore, in a family law case it is always a good idea to keep track of the expenses incurred for a pet along with the receipts.
Because the courts treat pets like property, clearly outlining the ownership rights of a pet in a contract provides more clarity in the event of separation. Cohabitation agreements, pre-nuptial agreements or marriage agreements can be drafted to protect the property interests of each spouse, and this can include pets. These agreements can also outline who is responsible for caring for a pet during the relationship.
However, couples who jointly share the expense of their fur baby and equally share all the responsibilities during the relationship are in a difficult position in the event of separation or divorce. Who gets to keep the pet will be determined by the evidence of ownership, and only one person gets to own the pet.
What about joint custody of the pet? In the case of Brown v Larochelle, 2017 BCPC 115, an application by one spouse for a one-week alternating joint access schedule with the family dog after the couple separated was unsuccessful. In Kitchen v. MacDonald, 2012, BCPC 9, the judge said that “I cannot find that two parties own a dog and then proceed to make orders for ‘access’ to the dog,” (para 2). Therefore, at court it is very unlikely that an access order to a pet will be made, and the result is that one party will end up with the pet.
This is another reason why mediation is a great option in family law disputes. While the courts do not recognize custody and access of a pet, in mediation the spouses could agree to create an access schedule. They could also enter into an agreement on how to share any ongoing costs and on how to make medical decisions for the pet.
When estate planning, pets are still considered property and therefore included in your will as property to be distributed. However, they can be treated more like children, meaning you can name a guardian to care for them, but it is important to understand that it is not enough to tell the person you wish for them to care for your pet and it must be stated in your will. You can even allocate funds to care for your pet.
It is important to discuss your estate planning with a lawyer to ensure that you are structuring your estate in an efficient way and adequately providing for those important members of your family. If you have a pet, you want to ensure that they are taken care of if you are not here to care for them.
The family lawyers and estate planning lawyers at Crossroads Law have dealt with cases involving the division of pets and have assisted separating couples with creating access schedules for pets in separation agreements. Our mediators can also help facilitate a pet sharing agreement. Contact us today for your free 20-minute consultation to learn more.