Surprisingly, following separation the courts will treat the family pet is as it would any other asset, just like a sofa or a coffee maker. While this may be the juristic perspective, I’ve never seen framed photos of a coffee maker displayed on the mantle.
The emotional attachment to a dog can be profound, and determining who gets to keep it can become highly contested and drive up litigation costs. Sadly, while courts 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.
The Court Won’t Order “Sole Custody”
You need to be aware that courts in BC are loathe to impose a “parenting schedule” for shared custody of a pet — there will not be a “weekend access visit” ordered. If the dog is considered “joint property” he/she/it will be dealt with like any other family asset.
An Issue of Asset Division
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”.
Retaining Ownership of the dog
If the dog was purchased by one party during the relationship, it is likely that the purchasing spouse will retain ownership. That spouse will be obligated to compensate the other for one-half the pet’s 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…
Including a dog in a Separation Agreement
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.
An Access Schedule
If the parties are so inclined, a separation agreement can even contain an “access schedule” for the pet, most commonly where the dog transfers between households along with the children’s scheduled parenting time. An arrangement for sharing your dog’s future veterinary costs could be considered – 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. A skilled negotiator becomes adept at enabling the work that must be done, whether it be for the sake of the family pet or other treasured “property”, in order to keep conflict at a minimum. If sole custody of your dog is a priority, an experienced family lawyer can help you to find an acceptable compromise.
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.