Who gets the family pet in our Divorce? An Update.

byElizabeth L. Stewart

Our previous pet custody blog garnered significant positive attention and therefore we think it prudent to provide our readers with an update on this subject.

Who gets the family pet in our Divorce? An Update.

At Soby Boyden Lenz LLP, our lawyers handle every kind of family law issue, including the area of pet ownership, custody and support. Should your relationship be ending or you are considering divorce, it is important to seek legal advice regarding your pet custody and support wishes.

Our previous pet custody blog garnered significant positive attention and therefore we think it prudent to provide our readers with an update on this subject.

We continue to get asked:

1. who gets the family pet in our divorce? (short answer – it depends)

2. can I got to court to get shared parenting of our family pet? (short answer – no)

3. can I get pet support? (short answer – yes, depending on the circumstances)

The law surrounding pet custody is changing in the United States. Unlike in Alberta and the rest of Canada, courts are beginning to treat pets less as mere chattels and beginning to lean towards analyzing pet custody matters using the “best interests” test, being the legal test used to analyze human custody disputes.

The law recently changed in the State of New York when Judge Mathew Cooper, in the somewhat groundbreaking decision, Travis v Murray No. 308310/13 Supreme Court, New York County, New York, stated that pets should be treated more like children and less like pieces of property in divorce proceedings.

Judge Cooper found the dispute involving two spouses over a 2 year old mini dachshund named Joey, couldn’t be held “to a strict property analysis.”

Judge Cooper did not find that the family pet was a human being, but held “[it]is decidedly more than a piece of property marital or otherwise.” Although Judge Cooper did not fully apply the best interests test as would be required if Joey were a child, Joey was clearly not seen by the court as simply a piece of property.

The Judge ordered a hearing on the topic of, “who gets the dog?” and limited the hearing to deciding the issue of sole custody of Joey, noting the court would not entertain joint custody or any shared parenting or access arrangements.

Of import, Judge Cooper, in his analysis applied the “best for all concerned” legal test which was outlined in the US case, Raymond v Lachmann 264 A.D.2d 340 (1999) 695 N.Y.S.2d 308. Judge Cooper’s comments on the “best for all concerned” test are as follows:

The standard to be applied will be what is “best for all concerned,” the standard utilized in Raymond. In accordance with that standard, each side will have the opportunity to prove not only why she will benefit from having Joey in her life but why Joey has a better chance of living, prospering, loving and being loved in the care of one spouse as opposed to the other. To this end, the parties may need to address questions like: Who bore the major responsibility for meeting Joey’s needs (i.e., feeding, walking, grooming and taking him to the veterinarian) when the parties lived together? Who spent more time with Joey on a regular basis? Why did plaintiff leave Joey with defendant, as defendant alleges, at the time the couple separated? And perhaps most importantly, why has defendant chosen to have Joey live with her mother in Maine, rather than with her, or with plaintiff for that matter, in New York?

We can conclude that although Judge Cooper refrained from applying the “best interest” test, the “best for all concerned” test involves a more robust analysis involving Joey’s circumstances than a mere property analysis would.

Unfortunately, this matter was settled prior to the hearing being conducted, so we are unable to derive further insight into this issue

What happens to family pets in Canada?

The law in Canada still has not changed; pets are treated as property when people separate or divorce. The law is aptly defined in Hawes v. Redmond, 2013 NSSM 57 (CanLII) during a battle regarding the ownership of Tiny Tim, a Chihuahua at para 20:

Cases involving pets are well known in this court, and they are rarely easy. I believe it is apt to quote some of what I wrote in a 2008 case of Gardiner-Simpson v. Cross, 2008 NSSM 78 (CanLII), as setting out the necessary framework:

[2] Both the Claimant and Defendant are very fond of the dog, and they both have arguable cases for ownership. They tried without lasting success to share ownership. As such, the issue of ownership must be decided in favour of one of them, and the other will have to endure the loss of the relationship.

[3] The love that humans can develop for their pets is no trivial matter, and the loss of a pet can be as heartbreaking as the loss of any loved one.

[4] Emotion notwithstanding, the law continues to regard animals as personal property. There are no special laws governing pet ownership that would compare to the way that children and their care are treated by statutes such as the Custody and Maintenance Act or the Divorce Act.

At para 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.

In Alberta, the Matrimonial Property Act (“MPA”) grants the court jurisdiction to order how property is divided between divorcing spouses.

The MPA requires a court to distribute all property owned by either spouse or both of them, equally – unless it appears it would not be just and equitable to do so pursuant to specific factors outlined in the Act.

The MPA does permit property to potentially be exempt from division – if for example a pet was purchased before marriage or was gifted to someone during the marriage by a third party.

One’s continuing ownership will come down to factors such as who purchased the pet, and who paid for and contributed most to its care.

Can I apply for Pet Support? Yes!

Raising a pet is expensive and can be time consuming. In some circumstances a court will award monthly support for a pet’s maintenance cost.

In Boschee v. Duncan, 2004 ABQB 447, the wife was awarded $200 per month in dog maintenance costs [characterized as spousal support] to compensate her for the time and the expense required to look after the parties’ Saint Bernard dog. The husband made a higher income than the wife which was a factor used by the court in its decision.

Our advice when dealing with pet ownership post separation:

  1. litigation should be your last resort – try to work out an arrangement out of court. Litigation is stressful, expensive and the outcome can be uncertain;

  2. if you and your spouse cannot agree, consider mediation. The court will not order a parenting schedule for a family pet post separation. In mediation, parties can negotiate a workable pet parenting schedule and determine how the cost of the pet will be shared going forward. The lawyers at Soby Boyden Lenz LLP can assist you in finding a mediator that best suits your particular budget and circumstances;

  3. develop an understanding early on upon adopting a pet as to who will have custody of the family pet in the event of a relationship breakdown; and

  4. remember, a shared parenting schedule for your pet will work better when there is less conflict between the pet’s owners.

Other posts you might like:

Entitlement to Child Support for Adult Children

Will Corporate Retained Earnings be Considered Income for Support?