When your household breaks up, what happens to the animals that share your home?

To many people, a beloved cat or dog is practically no different than a person, and the thought of treating one like a lamp, couch or other chattel is just offensive. To some parting couples, the pets are their children.

Though at least one judge in British Columbia has gone so far as to consider the best interests of the pet (Haywood v. Carrasco 2016 BCPC 71), in the eyes of the law, pets are still considered property.

What this means is that if you take this type of “custody battle” to court, the pet will end up staying with one of you, and the other party cannot get an order for visitation. It’s not so much that the law is insensitive to the bonds between people and animals—it’s more that the courts can’t deal with all the disputes over custody and visitation with children and add to its workload by letting custody and visitation with pets be a thing.

The case of Kitchen v. MacDonald, 2012 BCPC 9 illustrates the situation. In that case, a boyfriend sought a court order for the equivalent of custody or access to his girlfriend’s dog. The court accepted the girlfriend’s evidence that the dog had been given to her before the start of the relationship, and on that basis had no trouble finding that the dog was her property. The judge stated:

There is uncontroverted evidence that Ms. MacDonald referred to Mr. Kitchen as the dog’s “daddy”.  There is an undated letter on file as well reporting to be from Laddie to “my daddy”, apparently following a break-up where Ms. MacDonald writes on behalf of the dog that she is sorry she cannot make them a family.  It suggests ways that he can come and see the dog while she is out of the house at work.  It concludes by saying “I know there is no way mommy would ever keep you from seeing me – that’s just not the kind of mommy she is.  She wants us to both be happy.”  There were also gifts and cards over the years addressed from the dog to his “daddy”.  Ms. MacDonald also encouraged Mr. Kitchen continuing to look after the dog during the day.  She encouraged the visits and the exercise and the companionship.  She was receiving by-law tickets with respect to the barking and it was obviously a relief to her to have someone entertaining the dog to help address this problem.  By anthropomorphizing this dog, Ms. MacDonald led Mr. Kitchen to, and Mr. Kitchen allowed himself to be possessed of an expectation that, the dog was “the child” of both of them.  This, however, despite the sentimental aspects, does not create a beneficial or legal interest in a dog.

In yet another case, the parties did not have children, and each was extremely attached to the family dog, which they had raised together from the time he was a puppy. That is, legally, they jointly owned the dog. They had been sharing the dog on a schedule, by consent, but that was not working well. Each party alleged that the other was inadequately caring for the dog during their scheduled time, and each asked the court for full ownership.

The court was unable to decide the merit of each party’s claim to have the dog, and ruled they would conduct an auction right then and there. The dog went to the highest bidder and the cold comfort of a few thousand dollars (an amount surely dwarfed by the legal bills) went to the loser. Rough justice!

However, when the court is considering the issue of pets together with the issue of child custody and visitation, the result can be different. In a case where the parties’ children were moving back and forth between mom’s house and dad’s house on a rotating schedule, the court ordered that the family dog would go along with the children on the same schedule. This is an example of what the court can do when considering pets alongside the best interests of the children. There are some obvious advantages. A pet can help normalize the situation for the child, and give comfort. At the same time, getting to have the pet in both parents’ homes may help make sure that one home is not unfairly preferred by the child.

The best outcome, if you both love the critter, is to work out by agreement how to share the “purr-enting” responsibilities. Here are some tips: http://www.businessinsider.com/what-about-wally-how-to-co-parent-a-pet-with-your-ex-2012-2