Many pet owners view their companions as cherished members of the family. When facing a divorce, breakup, or separation, it comes as no surprise then that the issue of pet custody remains an important topic for those involved. While pet owners may consider their pets as family, it’s important to remember that the law sees them in a different way.
Currently, in BC and across Canada, the law classifies pets as a variant of personal property, and as such, the approach to pet custody after a divorce or separation revolves around this framework.
In recent years, however, new thinking has begun to emerge to challenge this classification. A recent example of more progressive thinking for these types of matters can be seen in the 2017 case of Brown v. Larochelle in British Columbia.
In this case, the dog was jointly-owned, however, the judge factored in both the law and the pet’s best interests, which ended up awarding ownership of the animal to a single party. This is one instance that suggests society may be starting to think differently in its approach to pet custody by creating separation and distinction between personal property and sentient beings, and the corresponding rights that come with each.
Despite this direction, the laws in BC and Canada remain that pets are considered property and by law, they have no familial rights.
Who Gets Pet Custody in a Divorce or Breakup?
Before addressing who gets custody of a pet in a divorce or breakup, it’s important to remember that the law does not view pets in the same way it views child custody. In the earlier referenced instance of Brown v. Larochelle, the court confirmed these laws and added additional principles from the jurisprudence saying:
- 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.
In the eyes of the law, pet custody is usually awarded to the clear owner of the animal. This is usually determined by factoring things like:
- Whether one party had existing ownership of the pet entering into the relationship, was gifted the pet during the relationship, or acquired sole ownership of the pet during the relationship
- Who’s name was on documentation for associated costs such as licensing, receipts for veterinary bills, etc.
- Who was the primary caregiver of the pet
- Who incurred the most expenses while caring for the pet
In instances where the pet is determined to be jointly-owned, then the circumstance is typically considered a division of property. In these situations when ownership is awarded, the court will often order that the party who keeps the pet pay the other party half the value of the pet. Additional related expenses may be factored in as well.
Pet Custody Agreements
As with other agreements pertaining to the division of property in a relationship (such as a cohabitation or separation agreement) the issue of “pet custody” and how it is approached during or after the breakdown of a relationship, can be outlined in such agreements.
In BC, the courts do not have jurisdiction to make custody or access orders for pets. As such, including directives pertaining to pets in the form of agreements or mediation, can help provide a clear roadmap for navigating these issues in what is often an already difficult time.
If you’re facing a separation or divorce and wondering the best approach when it comes to your pet, reach out to our team of trusted family lawyers. Whether you’re facing a dispute or just looking for more information, our team has the expertise and experience to provide you with what you need.