Animal Ownership After Separation: Charting the path forward on caring for family pets

Animal Ownership After Separation: Charting the path forward on caring for family pets

At Family Central Law, we understand the role that animals play in a family unit. We appreciate that  family pets form a unique bond with their owners and that their companionship and affection are irreplaceable. For this reason, it can be troubling for animal lovers to hear that as set out in the law, pets are categorized as property. At Family Central Law, we strive to safeguard our clients' interests in their animals both before a relationship of interdependence begins and after a separation occurs.

Many clients believe that pets should be offered the same legal remedies as other members of a family unit. In Alberta, parenting disputes are adjudicated using the "best interest of the child test," where the courts consider the needs and circumstances of the children. As personal property, pets are not provided with the same consideration. Rather, pets are distributed based on the depth of each party's settled intent to care for such property. This position is highlighted in the Newfoundland Court of Appeal Decision of Baker v Harmina:

"In the eyes of the law a dog is an item of personal property. That doesn't mean dogs aren't important. It means that when two people disagree about who should get a dog, the question is not who has the most affection for the dog or treats it better (so long as both parties treat the dog humanely). The question is who owns it."  Baker v Harmina (2018), NLCA 15 at paragraph 12.

Canadian jurisprudence has been hesitant to classify the family pet as "joint property" – where parties share a mutual property interest in the animal. One of the key rationale for this is that joint ownership of an animal often does not end the conflict between parties but will often prolong the conflict. As explained in Baker v Harmina, supra, joint ownership is simply impractical:

"Every time one party is late for the drop-off, or sick, or on vacation; when the dog is sick and vet bills need to be shared; when the dog is injured in one party's care — there is an opportunity for conflict. These opportunities can be particularly tempting for former romantic partners who end up in court litigating the ownership of a pet." Baker v Harmina (2018), NLCA 15, 2018 at paragraph 23

The impracticality of joint pet ownership is compounded by the fact that there is limited public resources and therefore courts in Canada have been reluctant to delve into pet ownership. For this reason, it is advisable to seek Alternative Dispute Resolutions services such as mediation (in person and virtual mediation) or arbitration when trying to resolve disputes involving family pets, to which both parties have strong emotional ties to. These services can help parties avoid conflict, reduce costs of litigation, and provide unique resolutions, in a setting that allows for in depth discussion to occur.

How do we define who has a more compelling rationale for pet ownership?

When parties are unable to agree on an arrangement for their pets upon the breakdown of a relationship, family animals are subject to distribution as personal property under section 7 of the Family Property Act. This Family Property Act, which came into force on January 1, 2020, expanded and now includes property entitlements of common-law partners. Under the Family Property Act, property acquired during a marriage or relationship of interdependence is typically divided equally between the parties with consideration for certain property exemptions.

The following is an example of property distribution under the Family Property Act: Two people cohabitate for three years and subsequently become Adult Interdependent Partners. One partner owned a dog before moving in together. The other partner purchased a cat after moving in together. The parties are now separated and are disputing over where the family pets will be placed between two new households.

Under the Family Property Act, the dog would likely be deemed exempt property and the sole property of the first owner because it was property purchased before the relationship of interdependence began. Both parties, however, would have a property interest in the cat regardless of who purchased the pet. This is because the property was purchased during the relationship of interdependence.

In Alberta, at the Court of Queen’s Bench of Alberta, when a Justice hearing a matter on family pets is required to make a property distribution like the one outlined in the example above, various factors from the Family Law Act and case law may be considered. It is important that pet owners speak to a family lawyer about their property rights and the actions they can take to protect these family animals, in the event of a breakdown in a relationship.

How to protect my right of ownership over my pet?

When pet owners seek to secure their property interests in their pets, cohabitation and prenuptial agreements are often used to avoid future pet ownership conflicts by tailoring each agreement to the unique circumstances of owners. In addition to cohabitation and prenuptial agreements, Family Central Law offers "Pet Ownership Agreements" which offers a creative solution for parties looking to resolve or prevent pet related disputes.

Regardless of the legal mechanism desired, Family Central Law is eager to assist clients with their pet related legal matters. To learn more about your rights and the legal services we provide, please contact us today for a free consultation with one of our experienced family lawyers by calling our office at 587-392-7970 or emailing, or by clicking on our consultation page

Calgary Family Central Law Firm

Trusted Counsel for Calgary Family Law Matters

Our firm believes in access to legal services for everyone, and serves the Calgary area, as well as regularly traveling for court appearances in Red Deer, Edmonton, Fort McMurray, Medicine Hat, and Lethbridge.

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