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Who gets custody of the family pet when a couple separates or divorces?

Separation and/or divorce is never an easy thing to go through, especially when you are fighting over custody.

However, there is a newer development in custody fights, not custody of children but custody of the family pets.

So, who gets to keep the precious “furbabies” when there is a separation or divorce?

That’s a good question. There is no specific legislation in the various provinces and territories to deal with the question of pet custody or the concept of pet custody itself; however this question is not a new one.

Is the dog a possession or sentient being?

Currently, under family law, animals are described as having an “owner” and are therefore they’re likely seen as possessions when it comes to division of family property.

Courts across Canada have held that dogs are property. It is likely that cats and other pets would be held to be property as well.

There really is no such thing as custody over a dog or any other pet right at this moment, because they are not considered sentient beings but rather possessions. Therefore the law doesn’t really consider the best interest of the pet - unlike with children who are sentient human beings as well as being vulnerable due to their young age - but rather to whom should this possession go.

It seems that courts are increasingly cognizant that some people see pets as more than mere possessions and may take that into consideration when making a ruling.

So, how then are pets divided?

If a pet was brought into the relationship prior to marriage by one of the spouses then this pet may be considered excluded property. However, under most family legislation in the respective provinces and territories, if the possession increases in value then this value has to be split.

What will also be likely taken into consideration is who took care of the dog during the relationship.

Take note that family law acts of the provinces and territories, which talk about family property division, often only apply to legally married couples. Sometimes common law couples will be recognized as spouses under the family law act legislation in certain provinces or territories but you will have to consult the specific legislation of your province or territory to find out whether that applies to you.

Is there such a thing as pet support?

Not really, although there is a 2004 case that came out of the court of Alberta, in which the wife took care of the dog and the husband was ordered to pay $200 per month for the dog’s upkeep. The amount wasn’t considered “pet support”, there isn’t really such a concept in the law (yet) but rather spousal support.

There is no easy or simple answer as to who gets the pet after a break-up and it’s usually just easier to decide amongst the parties either who gets to keep the pet, or whether the parties are able to share the pet. Also keep in mind laws are ever-changing and evolving. If the law starts recognizing pets as sentient beings, or even it doesn’t, concepts like “pet custody” could actually become legally recognized.

If you are involved in a dispute over your pet(s) with your former partner you should consult a lawyer.

Read more:

Pet custody: who gets to keep the family pet?

Criminal Code of Canada Cruelty to Animals