This article looks at some options for resolving pet ownership issues. We also consider a recent decision of the Supreme Court of British Columbia, in which a person sought the return of two dogs following a separation.
Often, it will be possible to resolve pet ownership informally. However, it is also possible to resolve these issues through a domestic agreement.
Spouses can use a marriage, cohabitation, or separation agreement to set out their rights and responsibilities after separation. The agreement lays out, in detail, each person’s rights with respect to important matters including how the spouses will split the property they each individually brought into the relationship, as well as the division of property or wealth accumulated during the relationship.
It is possible to apply to the court to receive a decision as to who legally owns a pet. This is not a common occurrence but does sometimes come up in the context of broader separation disputes that also deal with other family law issues, such as support payments and parenting issues.
It is important to note that animals are considered in law to be a form of property. They are not treated in the same manner as children – there is no concept of the best interests of the animal. As a judge of the Queen’s Bench for Saskatchewan once colourfully put it:
The proposition at law that dogs are property and are to be treated as such, and not as children are treated, is borne out by a reasoned and dispassionate consideration of the differences in how we treat dogs and children. A few examples should suffice as illustration. In Canada, we tend not to purchase our children from breeders… When our children act improperly, even seriously and violently so, we generally do not muzzle them or even put them to death for repeated transgressions.
As pets are considered a species of personal property, courts apply property ownership rules to determine who gets to keep the pet.
However, there is some support in the case law for taking a flexible approach to property law principles to ensure the welfare of the animals. The court may consider factors including whether the animal was owned by one of the people before the relationship started, who purchased or raised the animal, who exercised care and control of the animal, who paid for the expenses of the animal’s upkeep and what happened to the animal after the separation.
In Bain v Brown, a woman sought an order requiring her ex-partner to return two dogs.
The parties began a relationship in 2012 and separated in 2018. They acquired the dogs in 2013 when the other partner found the dogs as strays on the side of the road. The party seeking the order came to pick up the dogs and then returned with them to the parties’ home.
The party seeking the order claimed that the dogs were registered in her name and that she paid the majority of expenses during the relationship. She was now being denied any access to the dogs. Her ex-partner said that she had primary care and had borne the bulk of expenses since separation.
Justice Skolrood, noting that the inquiry into who owns a pet is very fact-specific, was unable to make a decision as to who owned the dogs given the significant factual disputes between the parties. As such, a decision has to await a trial set for later this year.
However, his Honour decided to grant an order giving the party seeking the order some access to the dogs in the period leading up to the trial (six hours one calendar day each month). This was because the parties had made previous attempts to agree on a shared ownership or possession model, thus recognizing the other’s ongoing interest in the dogs, and the status quo of exclusive possession would give the other partner an unfair advantage at trial. His Honour said that it was “only reasonable that the respondent have some time with the dogs in advance of trial to re-establish some sort of a relationship with them”.
Justice Skolrood concluded by offering some words of wisdom to the parties, saying that if they insisted on taking the matter to trial, they should prepare for an outcome that leaves them both unhappy:
In keeping with the principle that pets are a form of property, the trial judge will have a range of remedies available to them consistent with how the courts deal with disputes about other forms of property. While it is possible that the court might find one or the other of the parties to be the sole owner, it is equally possible, if not more likely, that the court will find the dogs to be family property. In cases of disputed family property, it is not uncommon for the court to make an order requiring the property to be divided equally or even sold.
Meridian Law Group understands the complexities of property division following a separation or divorce. The firm’s skilled family lawyers develop creative, practical legal solutions to resolve property disputes and ease clients’ concerns. The Meridian Law Group team exceeds expectations and assertively advocates for clients’ rights and property interests in any legal forum, including mediation, arbitration, and trial.
The lawyers of Meridian Law Group have been an integral part of the British Columbia family law community for over 30 years. Located in Nelson Square in downtown Vancouver, the firm proudly serves clients in Vancouver and throughout British Columbia, including West Vancouver, North Vancouver, Coquitlam, Penticton, Kelowna, Richmond, New Westminster, Burnaby, Surrey, Langley, and White Rock. To arrange a confidential consultation for your family law matter, please call 604-687-2277 or reach out online.