Your pet is property, not a child, so don’t expect visitation rights if you split up

Millions of Canadian pet-owners treat their cats and dogs like members of the family, lavishing them with attention and sparing no expense when it comes to their well-being.

So perhaps it’s no surprise that when couples decide to end their relationships, the fate of the family pet can be even more contentious than that of a valued possession. 

Now, most sensible separating couples agree on where Lassie will live, who will walk her and whether the other spouse will look after her when her owner is out of town.

If they can’t agree, some couples turn to mediation or their pet’s veterinarian for advice or a decision. 

And when no agreement is possible, most often one of the spouses will acquire a new pet and wisely walk away, leaving Lassie well-cared for and in the loving arms of their former partner.

But not always.

So it was recently, when Justice Danyliuk of the Saskatchewan Queen’s Bench Court was asked to make an interim decision on the living arrangements for Kenya (age 9) and Willy (age 2), two of the three dogs who had previously lived with a married but childless couple. 

(The parties agreed that given the third dog’s advanced age of 13 years, it was appropriate that she not be subject to the litigation and would live out her remaining days with the wife.)

Justice Danyliuk summarized the parties’ position as: “The husband wants one of the dogs and says the wife may choose which she will keep. The wife wants both of the dogs. Neither will budge.”

Perhaps because of the attention lavished on their animals, many separating couples believe that decisions about their pets should be dealt with as a custody and access dispute: should there be equal-shared parenting or are access arrangements in the pet’s best interests?

When deciding whether the Court ought to deal with the application on property or custody/access principles, the judge observed that “dogs are property and not children.”

He reasoned that “in Canada, we tend not to purchase our children from breeders. In turn, we tend not to breed our children with other humans to ensure good bloodlines, nor do we charge for such services. When our children are seriously ill, we generally do not engage in an economic cost/benefit analysis to see whether the children are to receive medical treatment, receive nothing or even have their lives ended to prevent suffering. 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.”

In Saskatchewan, the property law which Justice Danyliuk considered and applied to the couple’s beloved dogs, Kenya and Willy, allows for specific orders to be made with respect to the possession of household goods. When making a decision about household goods, the use of the household items and any sentimental attachment to them can be important to the final decision. The husband argued, in part, that the court had jurisdiction to make an order for possession of the dogs on that basis.

However, because a good deal of conflicting written evidence was provided by the husband and the wife about the acquisition, care and treatment of Kenya and Willy, Justice Danyliuk decided that he would not make the interim decision requested by either the husband or the wife. Instead he decided that the terms of the couple’s cohabitation agreement required interpretation and oral evidence on the dogs’ acquisition, care and treatment, both before and after separation, would have a bearing on the final decision.

In a number of other provinces, such as Ontario, there are no similar provisions about household goods. Instead, a pet is usually dealt with as property in the same way as the court would deal with a house, shares or an RRSP.

As a result, in jurisdictions which have no specific provision for household goods division, the court will likely be obliged to determine the ownership of the pet.

Once ownership of, for example, a dog has been decided by the court, the owner of the dog would simply continue to own it. In Ontario, the dog’s value would be added to the value of the other property owned by the dog-owning spouse. All of the dog-owning spouse’s property would then be equalized with all of the property owned by the non-dog owning spouse. If the dog was jointly owned, the court could order that the dog be sold and the proceeds divided, but generally the court has no jurisdiction to require that a pet be transferred from one spouse to the other unless the parties agree. 

Despite that Justice Danyliuk took some considerable care in analyzing the legal principles relating to pet possession, arguments about his decision makes it clear that he was far from pleased to have to deal with the matter. While commenting on the lengthy delays in having family law matters adjudicated by the courts, he chastised the parties, saying, ‘This sort of application should not even be put before the Court’.

Plainly written cohabitation agreements and marriage contracts allow spouses to decide how their property will be dealt with in the event of a future separation. For animal lovers, it’s the only sure way to avoid the ire of a judge asked to decide Lassie’s fate.

This article was originally published in the National Post.