Fighting over Fluffy: Who Gets to Keep the Family Pet?

Fighting over Fluffy: Who Gets to Keep the Family Pet?

Family Pets and he Family Law Act

For many people, the family pet is considered a living breathing member of the family. In some cases they are better behaved than most family litigants. Although the Court has been known to make interim custody orders for a motorcycle (Krczizanowski v Fieseler, 2018 BCSC 1545) the Family Law Act makes no provision for the custody and parenting time of pets. So what happens to fluffy when a party splits?

Gift or Family Purchase?

As much as people love and cherish the family pet, under the eyes of the law, animals are personal property. As stated by the court in Brown v. Larochelle, 2017 BCPC 115 “there are no special laws governing pet ownership that would compare to the way that children and their care are treated by statutes such as the Custody and Maintenance Act or the Divorce Act“. Assuming you can’t resolve the fluffy issue before going to court, at a trial the starting point is determining which person has the better property claim to the animal in question. The court has no jurisdiction to approach the matter as a “custody” or “parenting problem” : F.K.L. v D.M.A.T, 2020 BCSC 1296 and there are no laws that require the animal to be raised by the person who loves it more or would provide a better home environment.

If someone owns a pet and brings that pet into the relationship or if someone is gifted a pet during the relationship, the law generally treats that pet as their property when the relationship ends: Brown v. Larochelle, 2017 BCPC 115

[16]        In personal property law terms if someone owns a pet and brings that pet into a relationship or if someone is gifted or acquires prima facie sole possession of a pet during a relationship then absent exceptional circumstances that pet remains their property when they leave the relationship (see: Thompson v. Thompson2005 BCSC 1604 and McIntosh v. Daoust2016 MBQB 194).

Where a family pet is found to be excluded property of one of the parties, the court will undergo the rather bizarre task of determining whether the pet increased in value (perhaps this may be more applicable in rare breeds?). Such was the case in F.K.L. v D.M.A.T, 2020 BCSC 1296 where the parties fought over their beloved dog Kona who had been brought into the relationship by the boyfriend. The court found that he had not increased in value:

“[142]     In this case, the pet is Kona, a six year old dog brought into the relationship by Mr. T.  Kona passed back and forth between the parties several times following the separation, and has been in Ms. L’s possession since August 2018.  Mr. T hoped for an arrangement under which Kona would accompany A back and forth between the households, but Ms. L was not agreeable.  There is no evidence that Mr. T gifted Kona to Ms. L. 

[143]     Part 5 of the FLA addresses the division of property on the termination of a spousal relationship. Kona is the only remaining contested property. 

[144]     Pursuant to s. 85(1)(a) of the FLA, Kona is “excluded property”, that is, property that belonged to Mr. T at the beginning of the relationship and that continues to belong to him.  If Kona increased in value during the relationship, the increase in value would belong to both parties, but there is no evidence of that.  “

[145]     Pursuant to s. 97 of the FLA I declare that Mr. T owns Kona and order Ms. L to deliver Kona to Mr. T.

Joint Ownership

 Where a pet is found to be jointly owned by both parties, things get a bit more complicated. In the Brown decision, the court highlighted the problem pets pose as a joint asset in that they cannot be sold, partitioned or auctioned like a piece of property:

[6] The worst result of all would be a conclusion that the dog is joint property.

[7] Jointly owned property presents a peculiar problem for the law.  In the case of land, the Partition Act may be used to force jointly owned real estate to be divided or, if division is not practical, sold.

[8] In matrimonial cases, parties often agree to sell jointly owned assets (whether realty or personally) and split the proceeds.  The problem would take on a Solomonic quality, where splitting the asset (be it a dog or a child) destroys the thing for both of them.  Selling the dog to an outsider would only double the pain.

[9] Where there is a desire not to allow the asset out of the family, matrimonial parties will often hold a private auction or bidding war and the person willing to pay the most will acquire the asset, paying half the highest bid value to the other.  This may be fair in the case of financial assets, but not in the case of something of intangible value.

In a very recent decision: Chin v Sutherland, 2021 BCSC 732 the issue was ownership of the family dog “Bailey” who had been adopted by both parties during the marriage. The court found that each party were equal owners of Bailey as tenants in common under s. 81(b) of the FLA. In the Chin decision, the court noted the traditional remedy would be to order a sale of the dog and divide the proceeds. Based on the limited tools availible, the court concluded that Bailey is family property and owned equally. The parties were directed to make attempts to implement arrangements for shared ownership.

[87]      In this case, Bailey was acquired by the parties during the marriage. He is therefore family property. After separation, the parties are equal owners of Bailey as tenants in common, as provided for by s. 81(b) of the FLA.

[88]      Where parties cannot agree on an arrangement for shared ownership of a family pet, the court has limited tools under Part 5 of the FLA to resolve the impasse. For most other forms of family property, the answer would lie in the court’s power to order a sale of family property and division of the sale proceeds. However, neither party wishes to sell Bailey. His value to them is sentimental and emotional rather than financial. There is no basis in the evidence for me to conclude that either of the parties is incapable of caring for Bailey, such as to warrant a transfer of ownership to the other.

[89]      In the circumstances, in my view the most that the court can do at this stage is simply declare that Bailey is family property and owned equally by both parties as tenants in common, and order the parties make reasonable efforts to implement an acceptable arrangement for Bailey’s care that is consistent with shared ownership. As an equal owner of Bailey, Mr. Sutherland is entitled to equal time with him. In the event that either party does not make reasonable efforts to implement an acceptable arrangement, it will be open to the other to seek further remedies from the court for non-compliance with the court’s order.

Despite the court being unable to make a legal parenting arrangement, the court in Chin comes pretty close to doing just that.

If you have questions about your situation, our Vancouver Family Lawyers offer a free consultation for family law clients.

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