As a general entity, “the law” is often perceived in popular culture as being cold, harsh, and analytical. The domain of unfeeling and hardnosed old men, whose decisions and proclamations are rooted in the value systems of bygone eras and have no relevance to how we see the world today. In most instances this criticism doesn’t hold much water. The law is in a constant state of evolution and, particularly in Canada, has undergone and continues to undergo significant evolution to adapt to rapidly changing societal attitudes and behaviors. There are, however, certain circumstances in which the accusation of coldness and irrelevance carries rather more weight. On such area is pet ownership.
While you might consider your pet to be a part of the family, the law sees them simply as property. Thus, as far as the courts are concerned, your “fur baby” is more akin to lampshade or pair of sunglasses, than to an actual baby. Thus, the much-cited issue of who gets custody of the dog? is actually a total misnomer. Upon the breakdown of a relationship then, rather than determining who deserves to get custody of the animal, a court will determine who is its true owner.
When considering parenting arrangements, the primary concern of the courts is the well-being of the children. Well-being has nothing to do with ownership. It does not matter who has more time to spend with the dog, who can scratch behind their ear in just the right way; or towards whom summoned by both parties. Rather, the courts have traditionally limited their inquiries to one question. Who paid for the pet? The narrowness of this definition has not gone entirely unchallenged. In Baker v. Harmina [2018 NLCA 15], L.R. Hogg suggested that ownership might be best determined by considering a wider range of factors, including:
- The nature of the relationship between the people contesting ownership at the time the animal was first acquired;
- Any express or implied agreement as to ownership, made either at the time the animal was acquired or after;
- Who exercised care and control of the animal;
- What happened to the animal after the relationship between the contestants changed;
- Whether a gift of the animal was made at any time by the original owner to the other person; 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.
The model prescribed by Hogg, despite being appearing significantly “fairer” than the initial purchase price approach, has never actually been implemented in a Canadian court and was only proposed in the Newfoundland and Labrador Court of Appeal. As things stand then, this new and more equitable test for pet ownership has no legal force in British Columbia. Therefore, whoever paid for the pet owns the pet.
But what about cases where the purchase price was split between both parties, or when the pet was family property under a formal or common law marriage. One might expect in such circumstances that the court will make an order for access to the animal so that both parties may share it in the manner of a parenting schedule or “joint custody”. However, the courts are reluctant to compel the continued interaction of former romantic partners with one another. Whilst the continued presence of both parents in a child’s life is rightly deemed crucial enough to overcome this reluctance, the feelings of either the pet or the aggrieved former co-owner fail to do so. Instead, the courts will appoint one of the parties to retain exclusive possession of the pet and order that they buy out the proprietary interest of the other.
Alternatively, if you and your ex-partner are on good terms, or can at least tolerate continued contact with one another, you may decide to voluntarily enter into a voluntary arrangement with one another. You can devise a schedule allowing you both to spend time with the pet, fairly apportion costs like food and vet’s bills and ensure that neither you, your ex will risk losing access to the pet.