June 17, 2013 By: Erin Lepine
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So, you have divided the property, worked out a parenting schedule and the house is sold; but did you remember to decide who will take care of Rover, the family dog?

Disputes over the ownership of pets, specifically dogs, have been argued before Canadian Courts in a variety of ways. Some have argued that the family dog is a piece of property. Others have taken the angle that the dog should be treated more like a child, arguing Rover’s living arrangements are similar to a custody dispute over children.

No matter how the claim is framed, Canadian judges have decided that the family dog is a personal possession that should be divided the same as all other items in the house. That being said, the Court has specifically acknowledged that this is not a perfect solution. Dogs hold a greater importance to their owners than most other physical possessions, and are often considered a member of the family and treated in a manner similar to children.

Even though the Courts are sensitive to the special bond we share with our dogs, judges have little tolerance for attempts to determine ownership in a manner akin to custody and access of children. Even in Gauvin v. Schaeffer (2003 SKQB 78), the only Canadian decision where the Court ordered that the owners share the dog according to a week-on/week-off schedule, the Court was careful to frame it in the sense of "shared ownership," and not "shared custody."

Nevertheless, upon reviewing the case law dealing with the ownership of dogs between separating spouses, one cannot help but draw parallels with the principles applied in the custody and access of children. Many judges are looking at the status quo after separation, as well as the roles played during the relationship, which very much resembles the same analysis made when considering sole custody or primary parenting of children.

Some of the factors that the Court has considered to determine dog ownership include:

  • Who purchased the dog?
  • Who trained the dog?
  • Whose name is the dog registered under?
  • Who has provided the day-to-day care for the dog?
  • Who has paid for the expenses of the dog, such as food, toys, collars, leashes, and vet bills?
  • Who is the dog more bonded with?
  • Who is listed as the dog’s owner at the vet?
  • Who has the dog stayed with since separation?
  • Who has been caring for the dog since separation?

Finally, it is worth noting that much of the litigation in this area has arisen where a separation agreement failed to specifically address the dog. In these situations, the Courts have consistently held that the dog fell under the general contents clauses of the agreements. As a result, upon separation it is important to consider what your intentions are with regard to ownership and living arrangements for your pets, and the possibility of including specific reference to these intentions in your separation agreement, just in case you forget to put Rover in the car when you move all of your other belongings out of the house.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.

Service: Family Law