Property division after a spousal relationship has ended can be emotional and difficult. This difficulty is increased when there are family pets involved. Family Law lawyers often receive questions about how "custody" of pets will be determined between the client and the ex-spouse. Clients often wonder whether a "parenting arrangement" can be put in place for animals shared with the ex-partner during the relationship. According to the law in Saskatchewan, pets are viewed as property and no "parenting arrangements" will be ordered by the Court.
In Henderson v Henderson, 2016 SKQB 282, the Saskatchewan Court of Queen's Bench (as it was then called, now the Court of King's Bench) discussed this very issue. The case is now several years old, but Justice Danyliuk's comments on how pets fit into the realm of family property remain relevant today.
Facts of the Case
In the case, the parties had married in June of 2000. Prior to their marriage, they had executed a Cohabitation Agreement stating that they wished to keep the property they owned prior to their marriage separate and for only joint property acquired during the marriage to be shared between them in the event of a separation or divorce.
The parties did not have any children. Instead, they had pets that they both were highly committed to. At the time of their separation, the parties owned a cat, "Slimey", and three dogs, "Quill", "Kenya", and "Willow". The dispute before the Court was an interim application in relation to two of the dogs, as the parties had agreed that the husband would retain the cat and the wife would keep one dog.
The Parties' Positions
Each party swore affidavit evidence regarding the dogs. The wife took the position that she was the primary caregiver for the dogs and that she had been the main decision-maker in acquiring the dogs during the relationship. The wife had also stated that she had been the one responsible for veterinary care for the dogs and obedience training classes. She indicated that she fed the dogs, trained them, and dealt with their exercising and grooming. She suggested that the husband did not take responsibility for the dogs.
The husband took the position that the dogs were also important to him. He stated that he had been part of the decision to acquire them and that they were important in his life. He suggested that one of the dogs should stay with him and the other should stay with his wife. The husband relied on section 6 of Saskatchewan's Family Property Act and asked the Court to grant him exclusive interim possession of one of the dogs as part of the household goods. He also referred to sections 26(1), 26(2), and 26(3)(i)(r) of the Act and argued that the Court had broad powers to order possession of family property by one spouse, subject to any terms and conditions that the Court deems fit.
The wife's position was more unique. She asked the Court to make a decision that was more akin to a custodial arrangement for the dogs, more commonly found in applications regarding children. She asked for the dogs to reside primarily with her on an interim basis, and for the husband to have reasonable access on reasonable notice for a defined period of time. She also asked that she be responsible for all decisions for the health and well-being of the dogs.
The Analysis by the Court
Justice Danyliuk conducted an analysis of the state of the law pertaining to pets following the cessation of a spousal relationship. When considering whether pets should be treated as property, or dealt with as courts deal with children, Justice Danyliuk determined that pets are family property and that decisions regarding pets should be adjudicated as such.
The Court noted that although dog owners may treat their pets as family, this choice does not alter the law. Although there is a distinction between animals and inanimate objects because animals have statutory protection from being treated with cruelty or neglect, they are still property.
Justice Danyliuk referred to an earlier court decision of Ireland v Ireland, 2010 SKQB 454, where the pets were also discussed as family property. In paragraph 12 of that decision, Justice Zarzeczny reasoned:
[12] It must be stated that, as both counsel acknowledged, a dog is a dog. Any application of principles that the Court might normally apply to the determination of custody of children are completely inapplicable to the disposition of a pet as family property. Any temptation to draw parallels between the Court's approach in this case to the principles applied to settle child custody disputes must be rejected.
In argument, the wife's lawyer had relied on several cases from outside of Saskatchewan where other courts have approached dividing pets in a way that is more akin to a "custody approach". In the end, the Saskatchewan Court declined to adopt this. Justice Danyliuk provided a list of differences in how people treat children versus pets and referred to Saskatchewan's Animal Protection Act in supporting the proposition that animals are property and are to be treated as such. Justice Danyliuk noted that emotional and sentimental attachment to property, regardless of the kind of property, can be an important and even determinative factor in its division, and that treating pets as children was not necessary in order to take such emotional attachment into account.
The Court's Decision
In the result, Justice Danyliuk urged the parties to attempt to resolve the matter outside of Court. He reminded them that if a decision could not be reached regarding where the dogs would reside, it was open to the Court under the legislation to order they be sold and the proceeds split between the parties, which was a result neither party wanted.
Justice Danyliuk stressed that using the Court's resources to decide a dispute over family pets was inappropriate. Referring to the Ireland decision, he cautioned the parties that the Court should not be engaged with interim applications or trials on these kinds of issues, except in the most compelling of circumstances. He noted that orders for exclusive possession of personal property under The Family Property Act are discretionary decisions, and it is open to the Court to grant possession to either spouse or neither.
Justice Danyliuk declined to make any interim order regarding the dogs. Because the parties had taken opposing positions in their affidavits regarding how the dogs were acquired, the Cohabitation Agreement did not assist the Court in deciding whether the dogs were the separate property of one of the parties. Justice Danyliuk ruled that the issue would need to be determined at trial if the parties could not resolve it outside of Court.
If you are engaged in a family property dispute and have questions regarding your pets, please reach out to our office. Pets purchased prior to a relationship are generally separate property and exempt from division upon separation, but they can be further protected from division if you have a well-drafted Cohabitation Agreement or Prenuptial Agreement. Parties are also free to make creative out-of-court agreements regarding their pets upon separation, though these are unlikely to be enforced by a court.
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.
