Canada: Who Gets The Dog In A Divorce?

Last Updated: March 26 2018
Article by Neil McPhee

Those of us lucky (or unlucky) enough to own pets know they are integral members of the family unit. Each pet has their own personality, and it leads to an emotional bond that cannot – and should not – ever be criticized by the justice system. In fact, courts have acknowledged that the loss of a pet may anguish its owner just as much as the loss of any loved one.

But, when a couple separates or divorces, that pet has to live with somebody. The question then becomes: who gets the dog in a divorce?

The answer is not simple. There are no laws specifically governing the care and custody of pets. However, the legal system has decided to treat the issue of dog (and cat!) ownership the same as arguments over personal property. This was exemplified in the decision of Henderson v Henderson, 2016 SKQB 282, a case out of Saskatoon that gained international attention .

Relying upon the Henderson decision, a court in British Columbia has summarized some guiding principles to keep in mind when arguing over a pet:

[3] The love that humans can develop for their pets is no trivial matter, and the loss of a pet can be as heartbreaking as the loss of any loved one.

[4] Emotion notwithstanding, the law continues to regard animals as personal property. There are no special laws governing pet ownership that would compare to the way that children and their care are treated by statutes such as the Custody and Maintenance Act or the Divorce Act. Obviously there are laws that prohibit cruelty to animals, but there are no laws that dictate that an animal should be raised by the person who loves it more or would provide a better home environment.

...

[14] What I extract from the collective wisdom of these cases and some others is as follows:

(a) pets will not be treated in a manner such as children;

(b) courts are unlikely to consider interim applications for pet possession;

(c) Canadian Courts are unlikely to find that joint sharing or some form of constructive trust remedy is apt;

(d) that pets are a variant of personal property;

Pet parents must try to work things out themselves. It often takes years for trials to happen, and, in the meantime, judges will not order that one person have custody of a pet. Judges will not even order that a person be granted access to see the pet. This is because pets are property. As far as the courts are concerned, in the arena of family law, your cat is the same as a butter knife. Justice Danyliuk, in the Henderson decision, writes:

[44] I strongly suspect these parties had other personal property, including household goods. Am I to make an order that one party have interim possession of (for example) the family butter knives but, due to a deep attachment to both butter and those knives, order that the other party have limited access to those knives for 1.5 hours per week to butter his or her toast? A somewhat ridiculous example, to be sure, but one that is raised in response to what I see as a somewhat ridiculous application.

Although there are no clear answers, there are still some things worth remembering. Since pets are considered property, they are governed by The Family Property Act. If one spouse obtained the pet before marriage, then they may be able to argue that the pet is not matrimonial property and that they are therefore entitled to keep it. Section 23 of The Family Property Act reads:

Property exempt from distribution

23(1) Subject to subsection (4), the fair market value, at the commencement of the spousal relationship, of family property, other than a family home or household goods, is exempt from distribution pursuant to this Part where that property is:

(a) acquired before the commencement of the spousal relationship by a spouse by gift from a third party, unless it can be shown that the gift was conferred with the intention of benefitting both spouses;

(b) acquired before the commencement of the spousal relationship by a spouse by inheritance, unless it can be shown that the inheritance was conferred with the intention of benefitting both spouses; or

(c) owned by a spouse before the commencement of the spousal relationship

(2) Subject to subsection (4), property acquired as a result of an exchange of property mentioned in subsection (1) is exempt from distribution pursuant to this Part to the extent of the fair market value of the original property mentioned in subsection (1) at the commencement of the spousal relationship.

[...]

[Emphasis added]

However, this is not determinative. There are limits to exemptions. As subsection 23(4) notes, the court may do whatever it feels to be right if it considers the exemption unfair:

(4) Where the court is satisfied that to exempt property from distribution would be unfair and inequitable, the court may make any order that it considers fair and equitable with respect to the family property mentioned in this section.

[...]

[Emphasis added]

If you and your ex cannot sort out who gets the dog, and if this goes to court, then be wary. A court will not appreciate an application over pets. In Henderson, the court refused to make an order, writing that:

[45] I am not making any interim order on this application. I do not want to encourage such interim or final applications regarding pets [...].

[Emphasis added]

Further, the court gave a warning reminiscent of Solomon's splitting of the baby:

[41] I urge both parties to attempt to resolve this matter prior to the necessity of a pre-trial conference and trial. Both parties should bear in mind that if the court cannot reach a decision on where the dogs go, it is open to the court under the legislation to order them sold and the proceeds split – something I am sure neither party wants. Both should consider the admonitions within this ruling and from the other cases, notably Ireland, and do their best to come to an agreement that obviates further court action and the attendant delay and expense.

[Emphasis added]

There are no easy answers when it comes to pets. The emotional attachment to animal companions is both immense and not easily understood. The justice system has little desire to help owners sort out who gets the dog in a divorce, and thrusts the burden of finding a solution onto the separating couple.

If you cannot reach agreement, then the court might simply order the animal sold with the proceeds shared between the two of you – an undesirable outcome to be sure.

Our family lawyers are also animal lovers. We can help you explore negotiated solutions with your ex to keep your best friend by your side.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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