Surprisingly, following separation the courts will treat the family pet is as it would any other asset, like a sofa or a coffee maker. While this may be true from a juristic perspective, the reality is that I’ve never seen framed photos of a Keurig prominently displayed on the mantle next to the wedding photos. The emotional attachment to a pet can be profound, and determining who gets to keep it can become highly contested and drive up litigation costs. Sadly, while courts must only determine the best interests of children following the breakdown of a relationship, pets receive no such consideration. For example, although there are laws to prevent cruelty to animals, there are no laws that set out which spouse would be able to provide the pet with a better home.
You need to be aware that courts in BC are loathe to impose a “parenting schedule” for a pet — there will not be a “weekend access visit” ordered. If the pet is considered “joint property” he/she/it will be dealt with like any other family asset. Family assets are typically divided so that each party receives half the value. Where division is impractical, an asset will likely be sold with the parties dividing the sale proceeds equally. In the case of two spouses equally devoted to their pet, selling the dog to a third party is not likely to be a very palatable option, so it comes down to who has the better property claim.
If the pet was purchased by one party during the relationship, it is likely that the purchasing spouse will retain ownership, and be obligated to compensate the other for one-half its value. In cases where the pet was purchased by both parties and joint ownership was contemplated at the date of purchase, or where there is no conclusive evidence of ownership, a decision will be left to the discretion of the judge.
Of course, given that one cannot choose a judge who understands the depth of attachment one may have for a dog, the judge will likely decide to allocate an equivalent portion of some other tangible asset to one partner, and give the dog fully to the other, leaving one dog owner a little richer but very much sadder for it. But there is a solution…
A well-crafted separation agreement will provide the parties with certainty around who keeps the pet, and potentially, who will visit. Whereas financial compensation will likely be tied to the pet’s approximate value, parties can structure a separation agreement to account for greater compensation to the non-pet-retaining spouse. If the parties are so inclined a separation agreement can even contain an “access schedule” for the pet, an arrangement for sharing its future veterinary costs and even for end-of-life arrangements, since our pets seldom outlast us.
Over the years, I have become well- versed in drafting creative separation agreements that deal with all of a family’s assets in a way that achieves enough balance to allow each party to move forward as a separate entity while also enabling the work that must be done in tandem whether it be for the sake of the family pet or other treasured “property”.
Even if you’re gripped in a battle with your spouse, or unfortunate enough to be the victim of one who would use your love of the dog against you, I’ll work with you to avoid court, reduce uncertainty and stress, and minimize your legal costs.