We’ve previously blogged about what happens to pets following a separation or divorce. It is clear that, while recognizing the special place that pets hold in the hearts of their owners, Canadian courts treat pets as property, and any principles applicable to determining custody of children are not applied to pets.

A recent case out of British Columbia has recognized this legal tradition, but also taken a unique approach to the issue of sharing a pet following the end of a serious relationship.

What Happened?

The pet at issue in this case was a 3-year old Korean Jindo dog named Luna.

Luna’s owners are both 25 years old. They began living together in 2014 and arranged to adopt Luna as a rescue dog from South Korea. Luna arrived in Canada in early 2015.  Both owners shared expenses and were generally equally involved in looking after her. In September 2015, the parties stopped living together and Luna’s “mom” moved to a new apartment that did not permit pets. In June 2016, she received permission from her landlord to have a pet, and contacted Luna’s “dad” about sharing possession of Luna.

The Position of Each Pet “Parent”

Lunas “mom” eventually filed a claim seeking possession of Luna. She requested that, in the alternative, Luna should reside with her on a week on/week off basis, or in the further alternative, that she be paid $475 for her half-share of the $950 the couple paid to adopt Luna.

Luna’s “dad” sought to maintain his possession of Luna without granting Luna’s “mom” any of the visitation rights she wanted. He argued that he had paid Luna’s “mom” $2,500 when she moved out to adjust certain matters between them, and he had believed that ownership of Luna was one of those matters.

The Law on Pets

As previously noted, the Canadian legal system treats disputes over pets the same as a dispute over property.

In this case, Justice Cowling noted some principles outlined in previous decision addressing the issue of pet possession following the end of a 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 ActObviously there are laws that prohibit cruelty to animals, but there are no laws that dictate that an animal should be raised by the person who loves it more or would provide a better home environment.

[5] As such, slightly distasteful as it may be in the case of two loving and devoted pet owners, I must consider which one has the better property claim.

[6] The worst result of all would be a conclusion that the dog is joint property.

[7] Jointly owned property presents a peculiar problem for the law.  In the case of land, the Partition Act may be used to force jointly owned real estate to be divided or, if division is not practical, sold.

[8] In matrimonial cases, parties often agree to sell jointly owned assets (whether realty or personally) and split the proceeds.  The problem would take on a Solomonic quality, where splitting the asset (be it a dog or a child) destroys the thing for both of them.  Selling the dog to an outsider would only double the pain.

[9] Where there is a desire not to allow the asset out of the family, matrimonial parties will often hold a private auction or bidding war and the person willing to pay the most will acquire the asset, paying half the highest bid value to the other.  This may be fair in the case of financial assets, but not in the case of something of intangible value.

[10] None of these mechanisms would do any justice in the situation before me.  As such, the only practical and humane thing is to do as I propose to do and attempt a principled analysis of the legal ownership.

Building upon these principles, Justice Cowling noted as follows:

  • pets will not be treated in a manner such as children;
  • courts are unlikely to consider interim applications for pet possession;
  • Canadian Courts are unlikely to find that joint sharing or some form of constructive trust remedy is apt;
  • that pets are a variant of personal property.

Justice Cowling also noted that there is a legal requirement in Canada that animals, and especially cats and dogs, be treated “humanely” and not like just any inanimate personal possession.

Property, Partnership, and Pets

Justice Cowling further stated that if you were to apply personal property principles to a pet, where someone owns a pet and brings it with them into a relationship or living arrangement, or where someone is gifted a pet during a relationship then, unless there are exceptional circumstances at play, that pet remains their property when they leave that relationship.

In this case, however, Luna was acquired by the parties in what Justice Cowling said “might be characterized as a partnership or joint venture”.

Basic partnership law, generally applicable in the business context, provides for an equal division of assets where a partnership (usually a business partnership) dissolves and requires that partners deal with one another fairly and equitably. Many partners make partnership agreements (similar to prenups) that stipulate what will happen to the business assets if the partnership ever fails. In this case, while the parties could be considered partners there was no such agreement.

One of the basic principles of equity is that “equity presumes that to be done which ought to have been done” (i.e. what should or ought to be done in a given situation). Justice Cowling stated that in this case it could be assumed that if Luna’s “parents” had, at the time they were adopting Luna, thought about what would happen to her if they split up, they would have agreed that any decision about her continued care should take into account her best interests and her humane treatment.

In making his final decision about Luna, Justice Cowling noted the characteristics of the Korean Jindo breed, including the fact that they are incredibly intelligent, exhibit unmatched loyalty, and require strong training, patience, and plenty of long walks and activity.

Justice Cowing noted that, other than the caselaw that suggests joint ownership of a dog is not a good idea, the evidence about Luna and about Korean Jindo’s in general suggests that “time-sharing” of Luna would not be best. There was clear evidence presented that Luna had “cemented her bond” with her “dad” since the parties separated and had been well-cared for by him. In addition, there was no evidence that the parties had intended to include Luna in their $2,500 “property settlement”.

Justice Cowling ultimately did not grant either sole or joint ownership of Luna to Luna’s “mom”, but did grant her the $475 requested in the alternative, as well as costs of $110.

Deciding what to do with a family pet following a separation or divorce can be emotional and stressful. An experienced family lawyer can help parties make decisions and guide them into coming to a mutually satisfactory decision. If you have questions about making decisions about pets following a divorce or separation please contact Jason P. Howie, online or at 519-973-1500.

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