How to Get Custody of My Dog in Divorce? | BC Family Law

Are dogs or pets treated as property or children under BC Family Law? What do our courts consider in deciding who gets the dog at separation or divorce?

Our pet custody lawyers at YLaw know that determining the custody of your dog or pet may sometimes be the most heated and expensive issue to deal with. To many, pets such as dogs or cats are just as important, if not more important, than humans or even children. So it is no surprise that many would give anything to maintain their bond and closeness with the family pets at separation or divorce in British Columbia.

Let’s look at how the BC legal system looks at and treats pets at separation or divorce:

How Does BC Family Law Treat Pets at Separation or Divorce?

The law in BC and Canada is evolving when it comes to how to treat pets:

• Previously, the Courts looked at pets as pure property, as objects. Therefore, whoever paid to purchase them would end up keeping them;
• Then a series of softer and more holistic line of cases came in, where a myriad of factors would be considered in addition to who paid for the dog or pet. Most of these factors had to do with expenses and ownership; and
• Recently, some cases have begun looking at the best interests of the pet or dog in determining who gets to keep it.

As of right now, judges seem to be divided and take on different approaches when it comes to pet custody. It is always best to consult with a family lawyer or a pet custody lawyer to understand your options and the best approach in determining the custody of your pet at separation or divorce.

Let’s dive in and explain further:

Is Pet Custody the Same as Child Custody in Family Law?

Under BC laws, pets such as dogs are treated as property and not children. Therefore, the laws relating to the best interests of the child do not apply to pets. However, recently in some exceptional cases, some judges have started treating pets similar to children, determining their best interests rather than looking at them as property.

The “Pet is Property” Approach to Pet Custody

In the 2012 BC case of Brown v. Larochelle, the Court states:

(a) pets will not be treated in a manner such as children;

(b) courts are unlikely to consider interim applications for pet possession;

(c) Canadian Courts are unlikely to find that joint sharing or some form of constructive trust remedy is apt;

(d) that pets are a variant of personal property;

[15]        The above being acknowledged it is also clear that in Canada there is a legal requirement that animals (and in particular dogs and cats) be treated “humanely” unlike any inanimate personal possession.

[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

If the judge decides to go with the above approach, he or she will look at who purchased the pet, and the pet goes to that person. If one spouse gifted the pet to the other spouse, the other spouse keeps the pet.

However, in cases where the parties both purchased the family dog, the court will decide who the pet will go to:

1. if there are an even number of pets, the court will likely divide them in half, and each person keeps half; or
2. If there is one pet or an odd number, the Court must give the custody to only one person by choosing how to treat the pet: property, person, or both?

The “Hybrid Approach” to Pet Custody

When the courts are faced with the only option of giving the pet to only one spouse, they may follow the hybrid principles set out in the case of Baker v. Harmina, which states:

[52] […] The ownership of a dog is a more complex and nuanced question than the ownership of, say, a bicycle. In this regard, I see the non-exhaustive list of principles….

1. Animals (dogs included) are considered in law to be personal property;
2. Disputes between people claiming the right to possess an animal are determined on the basis of ownership (or agreements as to ownership), not on the basis of the best interests of the animal;
3. Ownership of–and hence the right to possess–an animal is a question of law determined on the facts;
4. Where two persons contest the ownership of an animal, the court will consider such factors as the following:

• Whether the animal was owned or possessed by one of the people prior to the beginning of their relationship;
• Any express or implied agreement as to ownership, made either at the time the animal was acquired or after;
• The nature of the relationship between the people contesting ownership at the time the animal was first acquired;
• Who purchased or raised the animal;
• Who exercised care and control of the animal;
• Who bore the burden of the care and comfort of the animal;
• Who paid for the expenses of the animal’s upkeep;
• Whether a gift of the animal was made at any time by the original owner to the other person;
• What happened to the animal after the relationship between the contestants changed; 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 “Best Interests of the Pet” Approach

Most recently, in the 2021 case of Poole v. Ramsey-Wall, the BC CRT reviewed the above-noted approaches but actually embarked upon a detailed analysis of the best interests of the dog by listening to the parties’ evidence regarding the dog’s care in addition to multiple dog experts who testified at trial as to who would be the most suitable caretaker for the dog.

The adjudicator reasoned that he/she could consider the best interests of the dog on the assumption that the parties would have wanted it that way had they known they would separate:

35.   I note Ms. Ramsey-Wall cites 4 BC provincial court decisions that considered the best interests of a dog, but those decisions were about interim custody pending determination of ownership, so they do not carry the same weight as a determination of ownership. Nonetheless, I am satisfied that the law permits me to consider evidence of Tessa’s best interests. Ms. Ramsey-Wall agrees, and it is fair to say Mr. Poole does as well, given the emphasis in his evidence and submissions

As you can see above, the issue of pet custody is highly complicated and uncertain. The courts could take a variety of different approaches, and the result would be black and white: either you keep the dog or your ex-spouse will. So what should you do?

Here is our advice:

1. Try your best to come to an agreement to share the custody of the dog with your ex. This is the only way you can guarantee to see the pet. Courts will not order shared custody. 
2. To help with the pet’s schedule, parties can also use Our Family Wizard. While this app is typically used for parenting schedules, there is nothing stopping people from using it for their pets.
3. Another option is to agree on a buy-out approach where you or your spouse could buy out the other’s interests in the pet based on the value of the pet.
4. If you have to go to court over pet custody:
   1. Consult with a pet custody lawyer. This will ensure the lawyer customizes your strategy and approach to pet custody and creates a proper path for you to follow;
   2. Since the law on pet custody is uncertain, it is important to focus your evidence and strategy with the assistance of a lawyer;
   3. If you have an even number of pets, the courts will divide them equally. So fight for half the pets in Court, not all;
   4. You can commence an Action in Small Claims Court, the Civil Resolution Tribunal, or the Supreme Court as a part of your divorce.

Consider mediation or negotiation to reach an agreement regarding pets as a separation agreement can outline who will keep the pet, who will pay for the pet and a schedule for “custody” and “access” to the pet.

For more information or to set up a consultation with our award-winning family lawyers in Surrey or Vancouver, call us at 604-974-9529 or get in touch.