But, what about the family dog? Possession of Family Pets on Separation
“Until one has loved an animal, a part of one’s soul remains unawakened.” – Anatole France
Pets are often an integral part of family life to which parents and children become attached. It is not easy on separation to divide household contents, let alone to decide what will happen with the family pet.
When parties can’t reach an agreement, the courts may be asked to resolve a dispute over pets. The cases that go to court on this issue are few and far between, not unexpectedly considering the cost involved in litigating the issue.
The courts are sensitive to the use of the court system (judicial resources) in pet disputes. In the 2010 Saskatchewan case of Ireland v. Ireland, 2010 SKQB 454, the parties had a 7-year relationship. The court action included a claim for division of family property. During their relationship, the David and Diane London purchased a dog together, a chocolate Labrador retriever, named Kadi. The court accepted that both parents derived companionship from Kadi – David in running with her 3-4 times a week and Diane in walking and exercising Kadi including playing with a Frisbee.
The parties were unable to agree on who should possess and care for Kadi following their separation leading to an interim application to the court to determine care and custody for Kadi. This led to an order directing David and Diane to share Kadi’s care and custody on a one week on, one week off basis.
The court characterized these weekly exchanges which had resulted from that previous order as “awkward and problematic”. David and Diane returned to court to ask a judge to order a new arrangement on the basis that the previous one was not working.
Both sides acknowledged that Kadi would be considered “family property” within the meaning of Saskatchewan’s Family Property Act, the equivalent of Ontario’s Family Law Act. Family property accrued during the course of a marriage is required to be equalized (the party with the lower net family property being entitled to one-half the difference between the two net family property amounts) on separation.
The hearing was scheduled for a full day and involved multiple witnesses. The court in its decision admonished the use of court resources to determine an issue such as this, noting:
[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.
The court cautioned that the application of child custody principles are inappropriate in pet cases. It was careful to limit the scope of the principles to discourage these types of applications.
[12] It must be stated that, as both counsel acknowledged, a dog is a dog. Any application of principles that the court might normally apply to the determination of custody of children are completely inapplicable to the disposition of a pet as family property. Any temptation to draw parallels between the court’s approach in this case to the principles applied to settle child custody disputes must be rejected.
[13] It is not the intention of the court, in making an adjudication upon this issue, to establish any principles at all for fear that by doing so the court may be seen to invite future applications or trials to deal with disputed claims to family pets as property.
In the end, the judge in this case awarded ownership and possession of Kadi to Diane citing the following reasons:
- The parties acquired the pet based on primarily Diane’s initiative and she was principally involved in its early training and care;
- Although both parties are attached to their pet and shared activities with her, Kadi’s companionship was found to be more important to Diane than to David;
- David and his new partner owned two dogs of the same breed. Although David may not have the same attachment to them, he had the benefit of their presence and companionship including for running;
- Diane was expecting to retire and spend extended periods of time in the winter in a “dog-friendly” United States location. The “shared possession” regime would be unworkable in those circumstances; and,
- The parties had difficulties during the exchange of Kadi resulting, on one occasion, a threat to all the policy. The court sought a change to prevent future conflict.
The court granted exclusive possession of Kadi to Diane and ordered Diane to pay David $350.00 (half the purchase price of Kadi).
In the Newfoundland case of CS v. DS, 2005 CanLII 16565, the parties married in 1999 and separated in 2003. The court was asked to decide a number of issues, including possession of a Labrador retriever that the husband bought in 1999 for $50. The dog lived with the parties while they were together and then with the husband since separation. The husband had, since separation, been responsible for the dog including paying for the cost of maintenance and care.
The court ordered that the husband have possession of the dog but ordered the husband to pay the wife $50 so that she could purchase “another dog of the same or another breed satisfactory to the (wife), if she requires it”:
[44] The dog is a matrimonial asset but it is, without being facetious, indivisible. The Applicant has had that dog continuously since separation and may retain it. The Applicant shall pay an amount up to $50, which I am told was the cost of the present dog, for another dog of the same or another breed satisfactory to the Respondent, if she requires it.
What is clear from the limited cases is that each case is fact-specific. A pet can be shared but not divided. It is up to the parties to agree to time sharing arrangement, or where more appropriate, for possession to one party and compensation to the other.
Courts encourage parties to settle these disputes without use of the court system where possible, and if not, with proportionality in terms of court resources required to resolve the issue.
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