For some of us, our pets are like our children. Canadian law does not share this view. The law sees pets as personal property. Consequently, in separating from your spouse you cannot be awarded custody or access of the family pet. Rover will be treated like property to be divided.
Determining ownership
Generally speaking, whoever bought Rover, owns Rover. You may be able to prove ownership by showing proof of purchase, vet records, and/or registration with your local municipality. However some exceptions apply, for example, if Rover was either gifted or abandoned.
If Rover was a gift
If you bought Rover as a gift for your ex, they would be considered Rover’s owner. Making a gift creates a transfer of ownership, regardless of the circumstances of purchase. You may be able to establish that Rover was a gift by showing a photo of you receiving him as a puppy with a bow around his neck, or by your Facebook status update the day you announced his arrival.
Possession is nine tenths of the law
This old adage may ring true when it comes to determining who gets Rover. If Rover was a gift to the other party but they have abandoned him, you may be able to establish that as the current caregiver that you should get him. This will be an uphill battle: the onus will be on you to prove that the other party intended to abandon Rover. However, even if you fail to establish that the other party intended to abandon Rover, you may be able to seek compensation for caring for the pup in their absence.
Litigation: a dog eat dog world
Small Claims court can deal with most disputes regarding personal property. Small Claims court is a branch of the Provincial Court and is designed to be more accessible for lay people, and cheaper. You will not be able to resolve any family law issues, such as custody or access of children, in Small Claims court. If you’re thinking about taking your ex to court to determine Rover’s future, you may be barking up the wrong tree.
Supreme Court can deal with all disputes regarding personal property as well as other family law issues. In Rover’s case, all the court will be deciding is ownership. Unlike with children, the court is not interested in the best interest of Rover. It is therefore advisable to try and come to an agreement without going before a judge, whose bark may be worse than his bite.
Coming to an agreement, or throwing the dog a bone
Rigid rules regarding personal property are not helpful when it comes to resolving disputes over pets. It is always better to resolve these disputes out of court.
The British Columbia Family Bar has done a great deal to move family matters out of the courtroom and into a more collaborative setting. Lawyers, mediators, and other trained professionals can help you craft a settlement agreement to the satisfaction of both parties, and that captures Rovers interests.
Caution: This is not legal advice, and you should not rely on it as such. To ensure your interests are protected, formally seek advice from a lawyer.