COVID-19 has had a significant impact on the separation rate of couples in Canada. When it comes to children who are stuck in the middle of disputing parents, families, and their lawyers can turn to legislation to guide them through the separation process. The same cannot be said about issues surrounding companion animals during separation.

There is no legislation that deals specifically with companion animals upon separation. When a couple separates, who gets the dog or cat? What are the individual partners’ rights? Does the companion animal have any rights in all of this? To date, some answers can be found only through case law.

Those who truly love their companion animal, do not think this raises issues about “just” a dog or cat. Many people take pet custody issues just as seriously as child custody ones — as they should. Pets are indeed family members, and an increasing number of people feel that way.

The law, however, has been slow to catch up with societal feelings about, and expectations for, animals. Historically, courts in pet custody cases have said that pets should not be treated in law as family members, but rather as personal property. Some judges have also been outright annoyed that litigants spend precious court time fighting over pet custody issues.

In some cases, judges held that, as distasteful as it may be, in the case of two loving and devoted pet owners, the court has to determine which one has the better property claim, and then award ownership of the pet to that person. Factors that courts have considered — and still consider — include who paid for the pet upon purchase or adoption? Who signed the purchase or adoption contract? Who has been paying for the veterinary bills, food, doggie daycare, and other expenses? Under whose name is the animal licensed at the veterinary clinic or with the city? Essentially, courts consider evidence that can be proven in writing.

That said, courts in British Columbia have gone beyond the traditional factors to also consider what is in the best interest of the animal when determining who is the rightful legal owner or guardian. So far, experts have not been required to explain why it is in the best interest of the animal to be with one person, instead of the other. Instead, issues such as who has formed a stronger bond, who takes time to care for the animal more, whether there has been any suggestion of abuse or neglect, have all formed part of the consideration of what is in the best interest of the animal at issue.

With respect to shared custody orders for companion animals, courts have generally held that they “should not be in the business of making shared custody orders,” and that deciding those issues takes time away from more “important” matters. With respect, if courts have time to deal with mundane issues such as contractual disputes, or litigation over who gets the fancy car or furniture post-divorce, the court should indeed be “in the business of” deciding on matters that are fundamentally important to people, such as their companion animals. Shared custody has already been ordered in Small Claims in British Columbia, since the legislation allows the court to deal with opposing claims to personal property.

Overall, there is increasing recognition in the judicial system across Canada that animals are indeed important, and although they are technically still “property,” they are a special kind of property, that warrant unique considerations.

The cases referred to herein are mainly in the civil litigation context. However, the principles and consideration of what is in the best interest of the animal can be applied in the family law context too when dealing with the division of “property.”