Family Law... Who gets custody of Fido and Fluffy?

Monday, March 21st, 2016
Posted in: Family Law by Kay Rhodenizer, Counsel

Kay Rhodenizer – March 2016

PETS AND SEPARATION

What do our Courts do if separating partners can’t agree on who keeps their pets?  There are very few reported cases that deal with this although most family law lawyers would tell you it can become an emotional issue.

Most pet owners would not agree pets are “property” like a car or painting but our law treats them that way.  There is also a difference between married and unmarried partners when dealing with pets (unless the partners have formally registered as a domestic partnership).

Married partners/registered unmarried partners

Section 4(1) of the Nova Scotia Matrimonial Property Act means a family pet purchased during the relationship is a family asset.  A pet purchased by one partner before marriage/registration also initially falls into this category, but  with the right facts the original owner might successfully argue the pet  falls under one of the exceptions to s.4(1):

If the pet is a family asset, who should keep it?  In 1980 an Ontario judge said that unlike child custody law the test wasn’t what was best for a Labrador retriever although he did go on to say the dog still had feelings.  He ordered visits with the partner who lived in an apartment.  The other partner was awarded legal ownership in part because he lived in a large home, had trained the dog to hunt and actively hunted with it. [1] Since each Province has its own matrimonial property law and no reported Nova Scotia family law case has referred to this decision as of January 2016, it’s unknown what a Nova Scotia judge might do with visitation.

In Newfoundland, although a dog was a family asset the judge decided it should stay with the partner who purchased it. The other partner received money to share the dog’s value. [2].

A few cases in Nova Scotia and elsewhere have awarded “pet support” but when that occurred it was factored into the amount awarded for spousal support. [3] 

Unmarried unregistered partners

 These partners must take pet disputes to Small Claims Court.  The Court adjudicator will decide who legally owns the pet, looking at such things as who paid for it and the named owner on applications for municipal tags and vet records. In some cases where one partner can prove the pet was a gift from the other, the recipient of the gift keeps it.  Nova Scotia adjudicators do not have any legal authority to order visitation schedules or “pet support.” [4]

[1]            Rogers v. Rogers, [1980] OJ 2229

[2]                   Simmonds v. Simmonds 2005 NLUFC 10

[3]            Nova Scotia:  unreported decision August 19, 2013, File No. 1201-065234 (parties separation agreement provided for pet support; husband’s attempt to renege from it at trial rejected); Boschee v. Duncan 2004 ABQB 447 ($200 per month to care for a St. Bernard, but decision may have turned on judge’s view that it cost much more to feed a big breed).

[4]            Pelton v. Fox 2006 NSSM 23 (CanLII); Gardiner-Simpson v. Cross 2008 NSSM 78 (CanLII); Hawes v. Redmond 2013 NSSM 57 (CanLII).

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