If you are going through a divorce and you have a pet, you might be wondering what will happen to your furry friend. Who gets to keep the pet? How do you decide who is the best owner? What are the legal implications of pet custody in Canada? And how much will it cost to settle the pet custody issue?

As pet custody cases are on the rise in Canada, the US, and the UK post pandemic, the subject has brought many questions forward. We will explore some of the issues and challenges that arise when divorcing couples have to deal with pet custody. We will also provide some tips and advice on how to handle this situation in a way that is fair and respectful to both parties and the pet.

How are pets classified legally?

First of all, it is important to understand that pets are currently considered property under Canadian law. This means that they are subject to the same rules and principles that apply to other assets, such as cars, furniture, or money. The court will informally look at factors such as who bought the pet, who paid for its expenses, who registered it, and who has been its primary caregiver since separation. Nonetheless, these are not factors connected to the test for what is matrimonial property.  The “best interest” of the dog is not a legal concept. This can be a source of conflict and frustration for many pet owners, who see their pets as members of the family and not as objects.

As property, you can’t be granted access to your dog for a week, just as you aren’t going to be granted access to your ex’s car. However, unlike other property, pets are not easily divisible or replaceable. They have emotional value and sentimental attachment that cannot be measured in dollars. 

This may sound harsh and unfair, but it is the current state of the law in most provinces and territories. There are some exceptions, however. For example, in British Columbia, the government recently introduced amendments to the Family Law Act that would give judges more guidance on how to deal with pet custody disputes. The proposed changes would allow judges to consider factors such as each person’s ability and willingness to care for the pet, the relationship a child has with the pet and the risk of family violence or cruelty to the pet. These amendments are not yet in force, but they reflect a growing recognition that pets are more than just property and deserve more protection under the law.

In Quebec pets are not considered property but rather “sentient beings” with biological needs, however, in separation or divorce cases they are still subject to the same rules as movable property. Judges can take into account the welfare of the animal and its attachment to its owners when deciding who gets custody. However, this does not mean that pets have rights or that they can be treated as children. The court will still balance the interests of the animal with those of the humans involved.

If you can’t share custody, how is it decided who the pet should be awarded to?

While in Newfoundland, pets are currently being awarded based on who paid for the pet expenses, in Nova Scotia there are currently no real rules to which way to award custody and going to court over this issue may not end with the desired outcome. At minimum, to litigate the issue of pet custody, you would have a half day in court which typically costs $15,000 per party. 

Therefore, many couples prefer to avoid going to court and try to reach an agreement on their own. This can be done through mediation, negotiation, or collaborative law. These methods allow the spouses to have more control and flexibility over the outcome and to tailor it to their specific needs and preferences. They can allow scheduled access and shared bills. 

Mediation also comes with a lot of value added. First, a 3-week mediation with Teryl Scott Lawyers Inc. only takes three weeks to complete compared to the numerous months it can take just to receive a court date. Secondly, at only $2,800 plus taxes and disbursements per party it’s less than 20% of the typical cost of pet custody litigation. Third, a half day litigation may only be covering the issue of pet custody, where mediation will cover other issues such as property and asset division and spousal support. And lastly, mediation is private. Unlike litigation, there is no public record of the conversations that are had.

What are some examples of the “pet custody” options you can come to in mediation?

  1. Joint custody: This means that both spouses share the ownership and responsibility of the pet. They can agree on a schedule that determines when and where the pet will stay with each spouse. This option can work well if the spouses live close to each other, have a good relationship, and can cooperate for the sake of the pet.
  2. Sole custody: This means that one spouse gets to keep the pet and the other spouse has no rights or obligations towards it. This option can work well if one spouse has a stronger bond with the pet, or if the other spouse does not want or cannot take care of it.
  3. Visitation rights: This means that one spouse has sole custody of the pet, but the other spouse can visit it at certain times or under certain conditions. This option can work well if both spouses love the pet and want to maintain a relationship with it, but cannot agree on joint custody or live too far apart.
  4. Selling or giving away the pet: This means that neither spouse keeps the pet and they either sell it to a third party or give it away to a friend, family member, or shelter. This option can work well if both spouses agree that they cannot provide a suitable home for the pet or if they want to avoid further conflict.

Whatever option you choose, make sure that you put it in writing and sign it as part of your separation agreement. This will help you avoid any misunderstandings or disputes in the future. Also, make sure that you consider the best interests of your pet and how your decision will affect its happiness and well-being. Of course, your pet is not just a piece of property, but a living being that deserves your love and respect.

Is there a way to protect yourself from the expense of pet custody?

Yes. Cohabitation agreements or marriage contracts can help prevent having to go through mediation or court by spelling out the custody before the relationship potentially breaks down. It is also important to think of future parties who may end up fighting over custody, such as if you pass away and your children all want the family pet. As property, you need to designate ownership, you can’t just tell someone they will be the one to inherit your pet. If it is spelled out in your estate planning, you can even allocate funds to care for the pet.

The above is provided for informational purposes only and does not constitute legal advice — contact a lawyer to discuss your personal circumstances and learn your options.

Teryl Scott Lawyers Inc. Related Services

To learn more about our services in divorce mediation, please visit our Divorce Mediation page. You can also visit our Family Law or Estate Planning pages.

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