02/23/2021
Who Keeps Fluffy?
Even pets are not immune from the acrimony between separating spouses in family law cases, and judges are called upon to decide their future. While many view pets as important family members, and while others are closer with their pets, and even take better care of them, than their own children, the prevailing view in Canada is that pets are property. Accordingly, spouses seeking to “share” pets as they would children after separation will not be successful. Instead, issues of ownership and possession of pets are decided in accordance with property laws. While pet owners may lock horns, pun intended, at the prospect of comparing the family dog to an RRSP, a cottage, or a twin-turbo platinum Cadillac, pets are not children notwithstanding their place in a family.
One pet owner learned a difficult lesson in Gardiner-Simpson v Cross, (2008 Carswell, NS 692). The subject was Tiny Tim, a long-haired Chihuahua. He was purchased by one spouse as a gift to the other during their relationship. Both sought to keep him upon their separation.
The court was quick to conclude that this was not a case about which of the two would provide Tim with a better home, or whether it was in Tim’s interests to split his time between them. Instead, the court held that Tim, a pet, was property, and therefore examined which of the spouses had “the better claim to legal ownership” over him. The court found that “the analysis is no different than if we were talking about a bicycle”. While Tim may have taken issue with that comparison, the court ultimately decided that he belonged to the second spouse since he had been gifted to her. She, therefore, had the stronger ownership claim.
In summary, whoever owns the pets, typically whoever purchased it, retains it, subject to any gifts between spouses such as in the above case. For married spouses, however, it should be noted that if a pet has value, such as a prized beagle or a thoroughbred racehorse, its value would be shared. When married spouses separate, the spouse with the higher net worth must pay half of the difference between the other spouse’s net worth. In theory, if the pet’s owner was required to make this payment, and if this spouse could not do so from their other assets, then the pet would have to be sold to pay the other from the proceeds.
Jurisdictions outside of Canada have taken a different approach to the treatment of pets in family law cases. Some view pets more akin to children and even consider a pet’s interests to decide its new home after its family’s dissolution. In Alaska, courts are required to consider “the well-being of the animal”, and even grant custody awards for pets, including joint custody. Illinois followed suit and recently amended its principle marital statute on similar terms.
While pets may very well be integral family members, treating them as children and considering their interests will likely result in a host of new litigation as separating spouses fight over them. One tool occasionally employed in custody cases for children, especially for older children, is a Voice of the Child Report to provide evidence about the child’s perspective. This author will not comment on the merits of such an analysis for pets.
- Fluffy, a DAD LAW client
