Our Family Pets: Custody Proceedings, or Property?

June 6, 2012

Among all of the issues that can be in dispute between spouses upon marriage breakdown, there is one that I find particularly fascinating.

The number of “pet” cases is on the rise, with spouses arguing over which one of them is entitled to keep the family pet(s).

Being a dog owner, I fully understand and appreciate the significance and sentimentality of a pet. My vet bills certainly underscore this fact. However, it often amazes me how much time, effort, and legal fees people will spend, in order to fight to try to keep the family pet upon separation. Case in point, several years ago I was involved in a two day arbitration, the sole issue being which spouse of the childless marriage was going to be able to keep the two dogs, upon marriage breakdown. The solomonic approach from the arbitrator would have suggested that each party be entitled to retain one dog; however, this is not what the arbitrator did, and I have to agree with the arbitrator’s decision, wherein she awarded both dogs to the other party.

There is no legislation dealing specifically with pets, inCanada. One cannot, therefore, point to any statute, for guidance as to how the issue of pets is to be treated, in law.

Some litigants will erroneously apply to court for “custody” of or “access” to their family pet. However, courts clearly do not have jurisdiction to make a custody or access order with respect to a pet. In short, custody and access orders apply solely to children, not animals. That being said and quite surprisingly, I will often either see Separation Agreements where parties have indeed framed the issue of pets as a custody and access issue, or I will get clients whose spouses have agreed that they will deal with the pets in such a fashion. Of course, I tell these clients that, if they do in fact deal with their pets by way of a custody and access term in a Separation Agreement, that term will simply not be legally binding on either of the spouses. It may be considered an expression of intention, but the courts will not enforce custody agreements regarding pets.

In the various cases that have dealt with pet issues, the issues have been resolved under the judicial principles of ownership. In other words, and like any other item of property in dispute between spouses, if the parties are unable to resolve the issue of which one of them is entitled to the family pets, the court will be called upon to determine who owns the pet, and the owner will be able to retain ownership and possession of the pet. Of course, this would also indicate that, if the pet has monetary value then the owner of the pet must account for the value of it, for equalization purposes. If you therefore have a valuable show dog, you may be able to retain ownership and possession of the show dog, but its value will be taken into account for equalization of property purposes.

The case most often cited in regards to pet issues is Warnica v. Gering, anOntario case from 2004.

In Warnica, Justice Timms of the Ontario Superior Court of Justice, stated as follows

“Of course any pet is somewhat different, in that it does not readily lend itself to physical division. A pet could be sold, with the proceeds to be divided in accordance with any determination as to the parties’ respective interests therein; however, that is something that few would want. Certainly it is something that no one wants here. A pet could be shared, as happened in the case of Rogers v. Rogers. In my view that would be akin to a custody/access order. Whether in the family court or otherwise, I do not believe that any court should be in the business of making custody orders for pets, disguised or otherwise. To the extent that any of my colleagues may feel otherwise, I respectfully disagree. Obviously, I acknowledge that pets are a great importance to human beings. Strong bonds develop between them and the human beings that look after them. To some people, the relationship with their pets takes on a significance exceeding that of any other. They go to extraordinary lengths to preserve that relationship; even at a cost that some would say is disproportionate. Some may consider them to be children: however, they are not children.”

As an aside and in relation to my arbitration case referred to above, both lawyers and our respective clients agreed that it would be best to take this matter to arbitration, rather than before a judge in court. All of us felt that we would have a more thoughtful and sensitive hearing before an arbitrator, rather than before a judge (who may have been impatiently viewing the issue as a waste of the court’s time). The issue was one of extreme importance to both parties, and all of us (the lawyers and the arbitrator) dealt with it as such. In the end, the parties did receive a full and fair hearing, and they walked away feeling as though they had been “heard”.