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Separating Pet Owners Lawyers

Separating Pet Owners Lawyers

Separating Pet Owners Lawyers at top rated MacLean Law deal with issues over ownership and possession of the beloved family pet. Dogs, cats, horses, snakes and even tarantulas can be a substantial part of your family. And when things go sideways in your relationship it can be devastating for the family pet and yourself. Contact top rated MacLean Law Separating Pet Owners Lawyers in BC and Calgary at 1-877-602-9900. Many people mistakenly think you claim custody of your pet on separation. In this blog Alex Watkins explains how this emotional issue is dealt with by the courts.

Separating Pet Owners Lawyers

Separating Pet Owners Lawyers 1-877-602-9900 Alex Watkins Surrey office

 

Separating Pet Owners Lawyers 1-877-602-9900

But Who Gets the Dog? 4 Things Separating Pet Owners Should Know

For separating couples, one of the most contentious issues is frequently the ownership and care of the family pets. Parties may have such strong bonds with their pets that they may consider them to be practically children (or “fur babies”) – however, in Canadian law judges have typically declined to treat them as such. Pets are instead most frequently treated as property, and are allocated or divided between the parties according to the laws governing property.

Separating Pet Owners Lawyers Explain Latest Pet Case

In the recent case of Brown v. Larochelle, 2017 CarswellBC 1034, 2017 BCPC 115, the court acknowledged the strong attachment many family law litigants feel for their pets, and the difficult circumstance that this puts the courts in when trying to determine how to deal with them when parties separate. In summary of this, the court quoted from the Nova Scotia case Gardiner-Simpson v. Cross, 2008 NSSM 78 (N.S. Small Cl. Ct.) as follows:

[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 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.

[5] As such, slightly distasteful as it may be in the case of two loving and devoted pet owners, I must consider which one has the better property claim.

[6] The worst result of all would be a conclusion that the dog is joint property.

[7] Jointly owned property presents a peculiar problem for the law …

[8] In matrimonial cases, parties often agree to sell jointly owned assets … and split the proceeds. The problem would take on a Solomonic quality, where splitting the asset (be it a dog or a child) destroys the thing for both of them. Selling the dog to an outsider would only double the pain.

[9] Where there is a desire not to allow the asset out of the family, matrimonial parties will often hold a private auction or bidding war and the person willing to pay the most will acquire the asset, paying half the highest bid value to the other. This may be fair in the case of financial assets, but not in the case of something of intangible value.

[10] None of these mechanisms would do any justice in the situation before me. As such, the only practical and humane thing is to do as I propose to do and attempt a principled analysis of the legal ownership.

Separating Pet Owners Lawyers Know Pet Custody Is A Misnomer

  1. Canadian Courts Have Frequently Declined to Determine Issues of Pet Ownership by Setting Pet “Parenting” Schedules as Would Be Done for a Human Child

Per Brown, the BC Provincial Court has stated (in summary of Canadian case law on the issue) that “pets will not be treated in a manner such as children.” There have been a few notable exceptions to this – such as Rogers v. Rogers 1980 CarswellOnt 2449 (in which the court imposed an “access” schedule for the parties’ dog) – but many courts have considered them to be wrongly decided.

In the case of Kitchen v. MacDonald, 2012 CarswellBC 119, 2012 BCPC 9, the separating parties became engaged in a dispute over their border collie, Laddie. The husband claimed ownership in the dog, and asked the court for an order specifying “possession time” for each party. The Provincial Court declined to do this and noted that this essentially amounted to an order for custody and access regarding the dog, which it found it did not have jurisdiction to do as these kinds of orders apply to children and not pets.

The Court then quoted from the Ontario case Warnica v. Gering, [2004] CarswellOnt 5605 (Ont. S.C.J.), in which the judge observed:

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 of great importance to human beings … To some people, the relationship with their pets takes on a significance exceeding that of any other … Some may consider them to be children; however, they are not children.

There is a solid rationale for this approach in Canadian legislation given that both the Federal Divorce Act provisions (which detail how the court may determine “custody” and “access”) and the Provincial Family Law Act provisions (which detail how the court may determine “guardianship”, “parenting time”, and “parenting responsibilities”) explicitly refer to “children”.

Separating Pet Owners Lawyers Note Prior Ownership Of A Pet Is Excluded Property

Pets Acquired by One Party Prior to the Relationship will Generally be Considered the Property of that Party

Per Brown v. Larochelle:

In personal property law terms, if someone owns a pet and brings that pet into a relationship … then absent exceptional circumstances that pet remains their property when they leave the relationship (see: Thompson v. Thompson, 2005 BCSC 1604 (B.C. S.C.) and McIntosh v. Daoust, 2016 MBQB 194 (Man. Q.B.))

Separating Pet Owners Lawyers Wonder If Money Is Enough When Family Pets Are At Stake?

Canadian Courts Have Frequently Elected to Compensate Parties Who Are Not Granted Possession or Ownership of Pets

If pets are property which must be divided when parties separate, it makes sense to attribute some kind of value to keeping the pets, and to compensate the other party accordingly. However, the question of what the specific amount of that compensation should be is tricky, as, for many, the value of a pet is primarily sentimental.

Per the Family Law Act, “the value of family property must be based on its fair market value”. Potential options for determining this are expense the parties paid to adopt that particular dog, or the amount that the parties would pay for that breed of dog at a pet store or breeder.

In the case of Brown, the court ordered that the Defendant (who kept the parties’ dog, and who was deemed the owner) reimburse the Plaintiff for half of the parties’ cost of adopting her.

Parties Can Enter Into Separation Agreements Which Detail How the Parties Should Address Pets (And Value Them Differently Than at Fair Market Value) – However, They Must Be Careful When Specifying How This is To Be Done

Our Separating Pet Owners Lawyers warn that being said, parties who are separating and wish to settle out of court may draft Separation Agreements which explicitly address the issue of what to do with pets – including which pets will stay with whom (and when), whether one party will compensate the other for allowing that party to keep the pets, and (if so) how much and it what form that compensation should be.

Separating Pet Owners Lawyers Warn That Pet Separation Agreements Can Reduce Stress

However, parties should take care to ensure that this is clearly set out in the written Agreement, lest they end up with a result as in the case of Brown. In Brown, the parties adopted a dog during their relationship – a Korean Jindo named Luna. When the parties separated, the Defendant moved into a residence that permitted pets (and took Luna with him) while the Plaintiff moved into a residence that did not. The Plaintiff then negotiated with her landlord and got permission to keep pets, then sought shared time with Luna. The parties ended up in litigation wherein the Plaintiff sought either sole ownership of Luna, joint ownership with a time sharing arrangement, or (if the court found she did not have ownership) reimbursement for half the cost the parties had paid to adopt the dog. The Defendant claimed that when the parties separated he had paid the Plaintiff $2,500 to settle issues between them, which he had thought included payment for Luna. The Defendant was granted ownership of Luna but was still ordered to reimburse the Plaintiff for 50% of the adoption fee, plus costs.

Separating Pet Owners Lawyers

Separating Pet Owners Lawyers 1-877-602-9900

Our top rated Separating Pet Owners Lawyers know pets disputes are emotional but we can help you reach a successful resolution for both you your spouse and your pet if you call us early on in your relationship or promptly if it breaks down. Call us now to move towards a successful resolution at 1-877-602-9900.

 



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