We are separating…Who Gets Our Pet?
We are separating…who gets our pet?
As a pet owner/lover myself, this area of the law is near and dear to my heart.
In January 2020 the Family Property Act RSA 2000 (the “Family Property Act”) was enacted providing “common law” couples (provided they qualify as Adult Interdependent Partners under the legislation) the same legal remedies regarding property division upon separation as given to married couples.
As per my previous blogs on this subject, pets continue to be classified as “property” when their owners separate and thus, the Family Property Act applies to determine ownership.
The best interest test that applies to parenting and decision-making disputes between spouses for children does not apply to issues surrounding pet ownership.
Factors to determine ownership of pets include:
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who purchased the pet;
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for whom was the pet purchased;
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who selected the pet;
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who attended to its veterinary appointments and costs;
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who paid for its needs;
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who licensed the pet and paid for the same;
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who completed the day-to-day care;
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how the ownership is viewed by the parties; and
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and who has possession of the pet.
In a recent British Columbia decision, Almass v Wheeler 2020 BCPC 5, the Court moved slightly away from applying a strict property analysis. At paragraph 6 stated:
The law is clear that dogs, even those purchased in the course of a relationship as a family pet, are property.
It is the nature of that property and how ownership of it is determined that is a bit more unique to pet cases than it is to toasters or other inanimate objects.
In Almass, the Court, in determining the ownership of the two dogs, granted one to each party. Interestingly, the Court did not consider the potential impact on either dogs’ mental health that could result from being separated from each other. The Courts simply did not have the jurisdiction to complete a “best interests” test.
The Court assessed the factors for ownership and made a finding of “joint ownership” and therefore, ordered ownership of one dog to each party. If the Court had found that one party was the “sole” owner of both dogs, then both dogs would have gone to that party.
The Court, in making a finding of joint ownership, relied mainly on evidence in the way of text communications between the parties.
The Court also noted that it did not have the jurisdiction to make orders with respect to pet parenting time or other access orders.
In summary, parties are able to contract between them regarding how pets will be parented following a separation, however a Court does not have jurisdiction to grant such an order. The Courts continue to be bound by a property/ownership analysis when determining who gets ownership.
Should you have any questions or concerns about your own pet ownership pending separation please contact us at Soby Boyden Lenz LLP.
Our experienced team is happy to guide you and answer any questions you may have.
