by Diane McInnis, Barrister and Solicitor
Custody disputes over pets are not uncommon. While typically, in Canadian law, pets are property.
The reality is that pets form an integral part of the family, and often both parties have a close bond
with the pet. When children are involved, care and control of the pet is often determined by the
residency plan of the children. Sometimes, the pet moves with the children.
It is challenging when one party gives the other the pet as a gift. Gifts are excluded from net family
property, and the technical application of the law would be that the recipient of the gift would keep
the gift. The law does not apply a best interest test to pets as it does to children. However, many
people treat their pets as sentient beings, like their children, and wants what is best for the pet. I
have had many clients spend hours in negotiation over how to deal with pets. Usually, it stems
from a genuine bond between each party and animal, and their need to maintain the closeness and comfort they derive from their pet, especially during the emotional turmoil endured during the
period of separation. Using the collaborative approach, I always recommend that parties meet with
the collaborative family professional, who is neutral and can assist the parties in a very costeffective
manner to negotiate these terms.
Sharing time with the pet may be important to both parties; however, I am always on the alert as to
whether or not care and control of a pet is a way to manipulate the other party, or force continued
contact, when otherwise there would be no reason for the parties to continue the communication.
This is often the case in couples who do not have children to consider in their separation. Requiring
one of them to be constantly making arrangements for drop-off and pickup of a pet is one way to
ensure that the other person has a thumb on the other person’s whereabouts, and tying him or her
down. Depriving one of the parties from contact to the family pet on the other hand, can seem
heavy-handed. Unlike children, the parties can contract ahead of time with regard to who will have
care and control of and pay for the expenses associated with the pet in the event of separation. If
this is an issue for you, I recommend that you speak to family law lawyer to get some assistance