Reasonable Doubt: Who gets the pet in a divorce?

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      Vancouverites love their pets. In many cases, one’s love for their pet outlasts their love for their spouse. According to a 2017 report by the Canadian Animal Health Institute, approximately 41 percent of Canadian households include at least one dog, and approximately 37 percent include at least one cat.

      It is, therefore, inevitable that many separating or divorcing couples will need to address what to do with the pet they once shared during their relationship.

      As a family lawyer, I often provide legal advice to divorcing or separating parties as well as negotiate terms of separation agreements on issues relating to their pets. The most common questions relate to who would get to keep the pet, whether parties could continue to share the pet, and whether one could get reimbursed for the expenses they spend on their pet.

      The most interesting consultation I have had was with a woman who wanted me to review the enforceability of a separation agreement that she and her ex-husband drafted on their own.

      The parties owned about 20 pet goats. They had taken a template of a separation agreement and inserted information about their goats in all the template sections that related to children. Under the “children of the marriage” section of their agreement, they included the sentence: “The children of the marriage are as follows…”, after which they listed of the names of each of their 20 goats.

      The agreement also required the husband to pay the wife “child support” for the goats, in accordance with federal child-support guidelines, which are the rules that courts use to calculate the amount of child support someone must pay in support of their child or children after separation. In this case, the “child support” was morethan $2,000 per month, based on the federal guidelines. To the disappointment of my client, I had to tell her that this agreement would likely be unenforceable, especially the “child support” section, as our laws do not treat pets or animals as though they were children.

      Although it seems ludicrous in a divorce to treat goats like children, some people feel that it is equally ludicrous to treat pets as property. There is no denying that, for most pet owners, their pets are very much a part of their family.

      Legally, pets are personal property. Pets are treated not too differently from a painting or a piece of jewellery in a divorce. However, recent cases have recognized that the well-being of a pet ought to be considered, given the fact that pets are not like inanimate personal property, as there are laws that require pets to be treated humanely. A 2017 provincial court decision, Brown v. Larochelle (2017 BCPC 115), reviewed previous court decisions relating to pets and outlined some principles and decisions on what happens to a pet when parties separate:

      • The legal system fundamentally treats issues about pet ownership the same way they treat disputes over personal property.
      • If someone owns a pet and brings the pet into a relationship, absent exceptional circumstances, the pet will remain their property when they leave the relationship.
      • If someone is gifted or acquires sole possession of a pet during a relationship, then absent exceptional circumstances, the pet will remain their property when they leave the relationship.
      • Courts are unlikely to find that joint sharing of a pet is appropriate.
      • In the case of two loving and devoted pet owners, the court will consider which party has the better property claim.
      • The court may consider the breed and, specifically, the characteristics and needs of the pet and which party would better provide for the pet, given its needs.
      • In a case where the parties both contributed to the purchase price of the pet and one party gets to keep the pet, a court may order that the party keeping the pet reimburse the other party for the amount that party contributed to the purchase price of the pet.

      Although the courts are unlikely to make orders forcing parties to jointly share a pet, this certainly does not and should not stop parties from negotiating and making an agreement outside of court that provides a schedule for how parties will share time with their pet and share reasonable future pet expenses.

      If you and your ex-spouse are able to agree to an arrangement, it will most likely be in the best interest of you and your pet and will save you significant time and money than rushing to court.

      A word of caution: you should not act or rely on the information provided in this column. It is not legal advice. To ensure your interests are protected, retain or formally seek advice from a lawyer.

      Nancy Chen practises family law at Catalyst Legal LLP.

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