Dealing with Pets after Separation, Part 2: Going to Court

In the first half of this article, I wrote about the laws on personal property that might apply when a couple can’t agree on how they’ll manage their pets after they separate. In this half, I’ll talk about the sorts of orders you can and can’t ask the court to make about pets, assuming you and your ex haven’t been able to settle the problem.

If you’re not the pet’s owner, or the court isn’t likely to decide that you are, but you still put money into buying the pet, you can ask to be repaid for what you paid toward its purchase.

If you must go to court about your pet, remember that because pets are personal property, the “best interests” of your pet aren’t relevant the way they would be if you were asking for an order about a child. Nor is who loves the animal more or, usually, who would provide the pet with a better home. What counts is ownership. As the adjudicator put it in Hawes v Redmond, a 2013 decision from Nova Scotia:

“[26] I have no doubt that the dog currently has a good home with Dr. Hawes and her family, but that is not the point. This case is not about the best interest of the dog; it is about who has the better claim to legal ownership. The analysis is no different than it would be if we were talking about a bicycle.”

Here are the orders you can and can’t ask the court to make about your pets.

You can’t ask for custody of the animal.

“Custody” is a Divorce Act term that applies to children. Human children.

What you’re probably looking for instead of a custody order is an order that gives you the right to have the animal that’s enforceable against your ex; more on this a bit later.

You can ask the court to make a declaration about who owns the animal.

If you do this, you’re asking the court to decide who the animal’s owner is. This is helpful when there are doubts about who owns the animal. Besides, being the pet’s owner usually lets you say where the animal lives… like, for example, with you.

If you lose, however, the court will most likely declare that your ex owns the animal. The court isn’t likely to refrain from making a declaration about who owns the animal once the issue has been brought up.

You can’t ask for access to the animal.

“Access” is also a Divorce Act term that only applies to human children.

The closest I can put the idea of access into an order about property is an order that would give each person the right to possess a pet on an alternating basis. Although there’s nothing stopping anyone from agreeing to that in a contract like a separation agreement, and the court would probably make an order like that if everyone agreed to it, the idea of a right to the possession of property on a periodic basis doesn’t fit well with the law on personal property, or the general principle that court orders should resolve, or at least decrease, the conflict between litigants.

First off, if you’re not the owner of the animal you don’t have the right to possess the animal, on a periodic basis or otherwise, unless you’ve got a contract with the owner. Second, if you’re the owner and you don’t have a contract requiring you to let someone have the animal from time to time, there’s nothing I can imagine that could oblige you to do so.

Third, if the two of you both own the animal and can’t agree to share it, the court won’t make you share it. Here’s what the court said about it in C.S. v D.S., a 2005 case out of Newfoundland and Labrador:

“The dog is a matrimonial asset but it is, without being facetious, indivisible.”

Accordingly, the court’s options are these:

decide which of you will be entitled to own and possess the animal, and possibly require the person keeping the animal to pay compensation to the person who doesn’t get to keep the animal; or,
make you sell the animal, and then divide the sale proceeds between you.

The compensation potentially payable in the first case would likely be based on the current fair market value of the pet – what a neutral stranger would pay to buy the animal from you, at its current age and in its current health.

You can ask the court to make an order about who should possess the animal.

Owning something is sometimes different than the right to have something. Landlords, for example, own the apartments they rent out but don’t have the right to possess apartment they have rented; the right to possess the apartment is what they sell to their renters. Orders for the possession of things are useful because they say that you have the right to have those things with you, whether you’re the legal owner or not.

You can’t ask for an order that you jointly own the animal, or that you continue to jointly own the animal.

Although you and your ex can make an agreement that you’ll continue to jointly own the pet, and the court would probably make an order that you jointly own the pet with your agreement, the court is not likely to make an order that you jointly own the animal over someone’s objection. This would create, or perpetuate, pointless conflict. If you can’t agree that both of you will continue to own the animal together, the court’s options are to:

decide which of you will be entitled to own and keep the pet, and possibly require the person keeping the pet to pay compensation to the person who doesn’t get to keep the pet; or,
make you sell the pet, and then divide the sale proceeds between you.

Again, the compensation potentially payable in the first case would likely be based on the current fair market value of the animal.

You can ask that you be compensated for the money you spent feeding and taking care of the animal.

If you don’t own the pet, you can ask the court to make a declaration that the owner of the pet was “unjustly enriched” by your contributions to the care and maintenance of the animal, as I described in the first part of this article. If the court decides the owner was unjustly enriched, and you can somehow prove what you spent on the pet and what your non-monetary contributions were worth, the court might then make an order that you be compensated for your contributions. “Non-monetary contributions” might include taking the animal for walks, bathing it, grooming it and so on.

If you’re asking the court for a decision about who owns the animal, you could ask for an order for the possession of the animal at the same time and kill two birds with one stone. (My apologies to bird owners.) Proof of your spending on the pet might include grocery bills and receipts from the vet, but few people take the trouble to keep all of these receipts and you’ll likely be out some money. It will be difficult to establish the value of non-monetary contributions, but you can get some idea by looking at what commercial services charge for things like dog-walking, grooming and so on.

You can ask that you be compensated for the money you put into buying the animal.

If you’re not the pet’s owner, or the court isn’t likely to decide that you are, but you still put money into buying the pet, you can ask to be repaid for what you paid toward its purchase.

This isn’t an unreasonable order to ask for, but I’d imagine that most animals are depreciating assets. The amount you’d pay for a very young dog with years of life ahead of it is not what you’d pay for a middle-aged or elderly dog. If you’re arguing about an eight-year-old dog, should the person keeping it be obliged to give you back your original investment or a proportion of that investment based on the dog’s current commercial value? The current value might be fairest, especially if you also enjoyed the dog while you were together.

You can ask for an order that the animal be sold, and that the money from the sale be split between you.

This is the scorched-earth option. It’s saying “fine, if I can’t have the dog, you can’t either.” It reflects your strong emotional bond to the dog and how upset you are at not being able to keep it, but also disrespects your ex’s attachment to the animal. It also comes across as rather petty and vindictive.

The adjudicator in Gardiner-Simpson summarized the problem with this sort of approach as follows:

“[8] In matrimonial cases, parties often agree to sell jointly owned assets (whether realty or personalty) 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.”

I can’t imagine too many judges making this sort of order. In fact, I can really only imagine this order being made as a way of signaling the court’s frustration with the behaviour of everyone involved.

You might also be able to ask for orders about the animal under your province’s or territory’s legislation on family property.

“The dog is a matrimonial asset but it is, without being facetious, indivisible.”

Your pet may qualify as divisible property under your province’s or territory’s laws about the division of matrimonial property. In British Columbia, property bought after a couple began to live together is “family property” that the court can divide under that province’s Family Law Act. In Alberta, a pet that both spouses enjoyed is a “household good” that the court could award to one spouse under the the Matrimonial Property Act. Under Ontario’s Family Law Act, a pet could qualify as part of a spouse’s “net family property.” You get the idea.

Now, just because pets may qualify for division under the family law legislation doesn’t mean they should be. In Ireland v Ireland, a 2010 case from Saskatchewan, the parties’ lawyers agreed that a labrador retriever was “family property” and divisible under that province’s Family Property Act, however the court commented that:

“[9] It is an unacceptable waste of these parties’ financial resources, the time and abilities of their two very experienced and capable legal counsel and most importantly the public resource of this Court that a dispute of this kind should occupy all in a one-day trial involving three witnesses, including an expert called by one of the parties. It is demeaning for the court and legal counsel to have these parties call upon these legal and court resources because they are unable to settle, what most would agree, is an issue unworthy of this expenditure of time, money and public resources.”

“[10] Except in the most compelling of circumstances (perhaps to avoid a breach of the peace or potential harm that parties may do to one another), the court should not be engaged with interim applications or the trial of an issue such as this.”

Really, the judge’s observation in this case goes beyond dividing pets by application under the family law legislation; the point that arguing about such claims in court is a waste of litigants’ financial resources seems to me to apply to all court claims involving pets. As the court said in Warnica v Gering, a 2004 case from Ontario:

“[19] … Whether in the Family Court or otherwise, I do not believe that any court should be in the business of making custody orders for pets, disguised [as property orders] or otherwise. …”