Danika Beaulieu – June 2018
When a couple separates or gets divorced, often the most contentious issue they face relates to the custody and parenting of their children. However, in a time where more people are choosing to have pets instead of children and/or love their pets as if they were their children, another contentious issue we are sometimes faced with is – who gets the dog (or other family pet)?
The simplest and most cost-effective solution is for people to attempt to reach an agreement they can both live with. We at MDW Law always encourage our clients to try to reach an agreement whenever possible because it allows our clients to consider options that may not be possible if the matter had to be litigated or adjudicated in Court. For example, some people may agree to have a “shared parenting” type of schedule for their dog, where each party would have the dog in their care for a week at a time. Some people may also agree that the person to whom the dog is most attached (regardless of who essentially purchased the dog) will keep the dog, and the other person will be able to bring the dog for walks and/or take the dog with them on vacation. The possibilities are endless. However, if an agreement is not possible, and the matter must be litigated, the Court’s only consideration will be ownership.
Contrary to what might be popular belief, there are no laws that recognize pets as living creatures with rights in Nova Scotia, nor is there an obligation for the Courts to determine what arrangement is in the “best interests” of the dog as there is when determining the appropriate parenting arrangements for children. There are laws that prohibit cruelty to animals, but there are no laws that dictate that an animal should be cared for by the person who loves it more, cared for it more, or would provide a better home. In Nova Scotia, family pets are considered as “chattels” or “personal property,” which, legally speaking, means they are not very different from the sofa in your living room. This means that the dog will usually be awarded to the person with the best case for legal ownership – which, unfortunately, may not always be the person with the best ability to care for the dog.
Another thing to keep in mind is that, because pets are considered as chattels, if there is a dispute over the ownership of the dog, these cases are usually dealt with in Small Claims Courts rather than Courts dealing with family matters (such as Family Court, Supreme Court, or Supreme Court (Family Division)).
In a Small Claims Court decision issued on March 6, 2017 (MacDonald v. Pearl, 2017 NSSM 5), Adjudicator Gus Richardson provided a non-exhaustive list of factors that should be considered in a dispute regarding ownership of a family pet:
- Animals (dogs included) are considered in law to be personal property;
- Disputes between people claiming the right to possess an animal are determined on the basis of ownership (or agreements as to ownership), not on the basis of the best interests of the animal;
- Ownership of-and hence the right to possess-an animal is a question of law determined on the facts;
- Where two persons contest the ownership of an animal, the court will consider such factors as the following:
- Whether the animal was owned or possessed by one of the people prior to the beginning of their relationship;
- Any express or implied agreement as to ownership, made either at the time the animal was acquired or after;
- The nature of the relationship between the people contesting ownership at the time the animal was first acquired;
- Who purchased or raised the animal;
- Who exercised care and control of the animal;
- Who bore the burden of the care and comfort of the animal;
- Who paid for the expenses of the animal’s upkeep;
- Whether a gift of the animal was made at any time by the original owner to the other person;
- What happened to the animal after the relationship between the contestants changed; and
- Any other indicia of ownership, or evidence of any agreements, relevant to the issue of who has or should have ownership or both of the animal.
In other words, if one person purchased the dog (either prior to or during the relationship) with the intention that it would be only their dog, and they did not gift the dog to their partner at any point during the relationship, the Court will determine that the dog should stay with the person who purchased it, regardless of whether the dog is more attached to the partner and/or the partner has more time to care for the dog. However, if the dog was purchased by one person during the relationship with the intention that the dog be owned jointly by the parties, the Court will need to examine the other factors listed above in order to determine who has the better argument for legal ownership of the dog.
If you and your partner are unable to reach an agreement with respect to who should keep the family pet and you would like some legal advice on the matter, please contact one of our family law lawyers here at MDW Law.