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Brianne Breckie, MacLean Family Lawyer

Who Keeps the Family Pet After a Breakup? Our top-rated Vancouver and Calgary family lawyers get asked this question a lot. Our Vancouver and Calgary pet custody lawyers help you understand how pets are treated by courts on the relationship breakdown. Brianne Beckie of our Calgary office explains how judges deal with pets and she gives you some ideas to keep your pet dispute civil.

Who Keeps the Family Pet After a Breakup? 1 877 602 9900

So, who keeps the family pet after a breakup? Upon the breakdown of a marriage or common-law relationship, the decision as to who will keep the family pet(s) is best left out of court. Pets occupy the special place of a family member but are they like a child? Emotions run high in these cases and a recent pet custody case made national news.

Pets are considered personal property in law (Gardiner-Simpson v. Cross, 2008 NSSM). As a result, courts do not make custody orders for pets (Warnica v. Gering, 2004 ONSC). This, of course, is not the view of pet owners, who treat their pets like a “child” or another member of the family. Therefore, the best way to deal with pets after separation is through discussions between the separating couple, or private mediation or mediation-arbitration, if necessary.

Pet Custody Lawyers 1 877 602 9900

Despite the traditional view of pets as property, some cases suggest that perhaps pets are viewed as more than mere property in the judicial system. In MM v. BM, for example, Justice W.N. Renke stated, “…the statutory language of “property damage” would not capture the proper significance of pets, who are (or at least Pet custody lawyers may be) more than property” (emphasis added). However, this is not currently the predominant view of the courts.

If a dispute over who gets to keep the family pet after separation is taken to court, the court will look at ownership of the pet. The party who owns the pet will usually get to keep it. If the pet is owned by both parties, the court may require one party to purchase the other party’s interest in the pet. The court has jurisdiction to order that the party who keeps the pet pay the other party half of the value of the pet (Kitchen v. MacDonald, 2012 BCPC). Of course, the parties can also share the pet after they separate and share the expenses, but this arrangement should not be left to the courts to decide.

In Baker v. Harmina (2018), the majority of the Newfoundland and Labrador Court of Appeal found that it would not be appropriate to order the parties to share the family dog. In this case, the parties purchased a dog and moved into a home together shortly thereafter. The Plaintiff, Mr. Baker, worked out of town, so the Defendant, Ms. Harmina, spent more time caring for the dog. The parties separated after two years of living together. Mr. Baker brought an action seeking an order that Ms. Harmina return the dog to him. A small claims court judge found that Mr. Baker bought the dog alone for himself and Ms. Harmina did not acquire a property interest in the dog, even though she took care of the dog. On appeal, the majority found that the small claims court judge rightfully applied a narrow, traditional approach to ownership (i.e. who paid for the dog).

Factors Affecting Contested Ownership Of Family Pets

A dissenting judge of the Newfoundland and Labrador Court of Appeal in the same case suggested that where the parties contest ownership of the pet, the court should consider factors such as (Baker v. Harmina):

  1. Who bought and raised the pet;
  2. Who primarily cared for the pet;
  3. Who cared for the pet after the relationship ended;
  4. Who incurred the expenses related to the pet (e.g., food, veterinary bills, toys, kennels, etc.);
  5. The relationship of the parties who contest ownership of the pet at the time the pet was acquired; and
  6. Any agreement between the parties of who has or should have ownership of the pet.

The court may also look at whether one party brought the pet into the relationship or if the pet was adopted by both parties during the relationship. Other potentially relevant factors include where the children reside (if applicable) as well as each of the party’s financial ability and time available to care for the pet. Again, this is not the predominant approach. Courts still apply a traditional notion of ownership – generally, who paid to acquire the pet.

Although uncomfortable, a discussion about who will keep the pet in the case of separation at the time the parties decide to get a pet might avoid a costly dispute after separation when negative emotions are running high and the parties are less likely to agree on who keeps the pet.

Pet Expenses

Pet expenses are not normally subject to division under section 7 of the Federal Child Support Guidelines (Clarke v. Clarke, 2014 BCSC). Although, parties can include pet expenses in a separation agreement, so long as the agreement specifies the amount and nature of the expenses (RC v. DRC, 2019 BCSC). In RC v. DRC, the mother applied for an order requiring the father to pay for half of the pet expenses, as “mutually agreed upon” by them. The mother’s application was dismissed because the wording used in the mediated agreement required consensus as to the types and amount of expenses to be divided on a 50/50 basis as between the parties. There was no such consensus in this case.

Who Keeps the Family Pet After a Breakup? 1 877 602 9900

If you are involved in a dispute over the family pet(s) with your ex-partner, contact one of MacLean Law’s offices in Calgary, Alberta or British Columbia. The lawyers at MacLean Law have the knowledge and experience to resolve these types of family law disputes, as well as the compassion and empathy to resolve the matter in favour of the best interests of all involved, including pets. We hope this “pet custody lawyers” blog has given you insights into how Courts and you can answer the burning question of who keeps the family pet after a breakup?