Pets in Family Law Matters

• 
  Matthew Villeneuve
  Managing Partner

Pets are vital members of the family unit.

Upon the breakdown of a marriage, there may be a dispute about which spouse is entitled to keep the family pet. Unfortunately, the current state of the law does not reflect the social realities about how families treat their pets.

The Current State of the Law Regarding Pets

Many people would be distraught to find out that pets are treated like any other piece of personal property. Section 4(1) of the Family Law Act defines “property” broadly enough to encompass pets, and there are no provisions offering additional protections to pets in the family law context.

Because pets are property, spouses cannot seek custody of their pets in the same way they can seek custody of their children. When seeking custody of a child, parents are able to argue about the child’s “best interests”. Parents are also able to split the child’s time between the two parents’ homes. However, the courts have refused to offer the same treatment to pets.

Problems with the Current State of the Law

In Coulthard v Lawrence, the court confirmed that in cases about pets, the only consideration is which spouse has legal ownership over the pet. Many pet owners may be concerned about this decision, because it does not take into account the shared bonds between the pet and the owners, nor does it consider that one spouse may have put more effort into tending to the pet.

Further, treating pets as property means that the pet may be seen as joint property. If one were to make this argument, another troubling issue would arise. In Gardiner-Simpson v Cross, the court noted that joint property is usually sold, and the proceeds are split between the parties. The court stated that if pets were treated in this way, then the pet would be torn from both parties and sold to a third party, which would “double the pain” for everyone.

Difficulties with Advancing the Law

In Baker v Harmina, the court recognized that the current state of the law is unsatisfying to many pet owners. However, the court explained that sharing the pet as though the spouses had joint custody over it would lead to more problems than benefits. The constant back-and-forth of the pet between houses requires ongoing supervision by the courts.

Since the court system is notoriously busy and slow-moving, adding disputes that treat pets akin to children would only serve to delay the system further.

Moving Forward

The best way to avoid any surprises about your pet upon a separation is to include the pet in a domestic contract, such as a marriage contract, cohabitation agreement, or separation agreement. These agreements may include a schedule for the pet between both spouses – a benefit that the court will not provide.

If you require assistance with a domestic contract or any family law matter, speak to a family lawyer at McKenzie Lake Lawyers LLP by calling (519) 672-5666.

This post was authored by Lawyer Matthew Villeneuve and Summer Student Aaron Ender.