My dogs, Muffin and Bear, are like my children. I would do anything for them and, if it came to it, I would go to court and fight for them.
However, much to my and my fellow pet lovers’ chagrin, family law does not treat fur babies the same way it treats human babies. Rather, in the eyes of the law, pets are personal property – they might as well be their stuffed counterparts.
The provisions regarding custody, access, guardianship, and parenting arrangements under the Divorce Act and the BC Family Law Act (the “FLA”) do not apply to them. As “property”, pets are subject to division under Part 5 of the FLA.
Many pet parents are horrified to learn that, when it comes to dividing a pet post-separation, there is no requirement to consider the “best interests of the pet”. Maybe this will change some day as society begins to increasingly recognize the significance of animals in peoples’ lives, but for now pets are treated in the same manner as the living room couch. What happens to a pet on separation depends on whether he or she is classified as excluded property or family property under the FLA.
Pets as “Excluded Property”
When it comes to dividing property between former spouses, the general rule under the FLA is that each spouse is presumptively entitled to half of all the family property. Certain property however, known as excluded property, is not divided between spouses (unless there is an increase in value of the excluded property, in which case the increase in value is divided between spouses).
A pet will be excluded property if it was:
- Acquired by a spouse before the spouses’ relationship began;
- A gift to a spouse from a third party (as opposed to a gift from one spouse to the other);
- Inherited by a spouse; or
- Acquired by a spouse during the spouses’ relationship using other excluded property (under the legal principle known as tracing).
If the pet fits into one of these categories, the spouse who brought the pet into the relationship (or received it as a gift from a third party, inherited it, or acquired it using excluded property) gets to keep the pet post-separation. As pets do not typically increase in value, no payment from one spouse to the other would normally be required to account for the increase in value of the pet. The options to the non-owning spouse when it comes to a pet classified as excluded property are:
- Argue abandonment. It may be possible for the non-owning spouse to argue that the excluded pet has been abandoned, especially if the owning spouse has stopped caring for the pet (e.g., stopped feeding it, stopped taking it for walks, stopped providing it with necessary medical attention, etc.). Abandonment occurs when a former owner gives up, deserts, or absolutely relinquishes the property.
- Claim unjust enrichment. Alternatively, the non-owning spouse may be able to claim compensation for his/her contributions to the maintenance of the pet through an action in unjust enrichment.
Pets as Family Property
If the pet does not fit into the category of excluded property, it will be family property, and it will be subject to division between spouses regardless of who purchased the pet. The question then arises: Who should get to keep the pet?
Other than using the Judgment of Solomon (declaring that the pet will be cut in two, each spouse to receive half), how does a court decide? There are few cases outlining how a court is to deal with this difficult decision, and the courts that have been called upon to make it have been unimpressed with having to do so.
In Ireland v. Ireland, a case from the Queen’s Bench for Saskatchewan, the court looked at the following factors, among others, to determine which spouse would have ownership and possession of the family pet:
- Who initiated acquiring the pet;
- The degree of attachment between the spouses and the pet;
- Who was principally involved in the pet’s training and care; and
- The availability to each spouse of similar pets.
A court may order that compensation be paid by the spouse who gets to keep the pet to the other. The court also has the power to order that the pet be sold, and that the proceeds of sale be divided between the spouses (although this seems extreme).
A Fair and Humane Approach
At the end of the day, it seems best for former spouses to recognize the important role that the pet has played in both of their lives, and the emotional attachment that each spouse has developed with the pet (as well as the emotional attachment that the pet has formed with each spouse). The options for access schedules and cost sharing are endless through a negotiated agreement and, if possible, this seems the best course of action for both the humans and the animals involved.