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A couple is breaking up acrimoniously, and one of the major sources of disagreement is their family pet. Both partners want to retain possession of the animal as their pet and companion. All efforts to mediate the custody dispute fail.
The dispute ends up in court. Who might the court award possession of the animal to?
Are Pets Personal Property?
Canadian courts generally see a pet as personal property, rather than as a member of the family. The person who purchased the pet is its owner, as long as that person can show proof of purchase, such as a bill of sale from the person or breeder from whom they purchased the animal. Courts across Canada have followed this principle in over a dozen cases. Courts of Appeal in Newfoundland and Ontario have affirmed their lower courts’ decisions in this regard.
Many courts at the trial and appeal level see custody applications for pets as “a waste of the … court’s time” and that the courts do not possess the jurisdiction to make orders for pets akin to a custody order, disguised or otherwise.”
Custody And Support For Pets?
Some couples see their dogs and cats as their ‘babies’ and themselves as ‘parents’ to their pets. There are several divorce and separation cases in which the couple fights bitterly over who has custody of their pets.
In one pet custody case, a divorcing couple had four cats and three dogs. The husband cared little for the cats, but insisted on having visitation rights to their dogs. The husband kept one of the dogs for a month when he took it for a walk and didn’t bring it back to the wife’s home. The husband finally agreed to return the dog after he and his wife agreed he would have visitation rights to see the dogs.
The judge ordered that the dogs stay with the wife. He strongly encouraged the two parties to use their common sense and uphold their informal agreement, pointing out that this dispute wasted court time that could have been spent on disputes over the support and custody of children.
Support disputes can also arise after custody of pets has been settled. In one case, a partner asked her ex-partner to pay $755 per month to support the couple’s 10 cats and 5 dogs. Her lawyer contended that the two had bought the pets together, but their separation was causing his client financial hardship as she was paying to feed and house the animals. Therefore, his client was entitled to spousal support for the pets as a purpose of spousal support is to ease financial hardship caused by the breakdown of the relationship.
The court awarded the woman $5000 per month in spousal support, but the judgment does not state clearly that this amount included support for the pets.
Could Courts Ever Make `Pet Custody Orders`?
Recent cases suggest that some judges may be willing to see pets as more than just property. In a Newfoundland Court of Appeal case, the dissenting judge wrote that “the ownership of a dog is a more complex and nuanced question than the ownership of, say, a bicycle.” In the case, the couple bought a dog together. The female partner actually spent more time caring for the dog, as the male partner worked for two weeks out of every three in Alberta. The male partner won custody of the dog, as he bought the dog and could prove it.
However, the trial judge and the dissenting appeal court judge would have awarded joint custody of the dog to both partners. It is very uncertain whether this approach will be considered, let alone adopted, by other judges or courts.
Pet ownership and custody after divorce is a difficult and emotional question to resolve. If you are a party to such a dispute, you should seek the counsel of an experienced family lawyer who can help you deal with the law in this area.