pet custody issues in family law matters

 

 

 

 

 

 

 

I get asked this question surprisingly often, so I found it quite interesting that social media this past week was “trending” with headlines like this one:

Mandy Moore Asks Ryan Adams for Pet Support for Their Eight Animals in Divorce Documents

Now, I’m not usually one to follow celebrity stories, but as an animal lover and family lawyer the phrase “pet support” had me intrigued.

Moore and Adams, spouses of six years, have eight pets together – six cats and two dogs. After the couple split in January, Moore has borne the burden of caring for the pets, a burden which she claims has caused her to miss out on employment opportunities.

According to People magazine writer Melody Chiu, Moore “has a lot she would like to accomplish with her career, but she has to stay at home with the animals and she needs his help financially in order to do that.”

Now, most dog and cat owners consider their four-legged friend as part of the family. Sometimes the most important part. However, even though we treat our pets like our babies and spend more money on them than on ourselves, the law still by-and-large sees them as property, not furry children.

In Canada, decisions and agreements on who gets to keep Fluffy and Fido are framed in terms of ownership, rather than custody, and can vary based on the individuals’ situations, family structure, financial means and time to care for the pet, temperament of the pet, and actual legal ownership. For instance, if one of the spouses owned the pet before the relationship began, that spouse may have a stronger case to keep the pet. However, this can depend on other factors such as whether there are children involved who may be attached to the pet, or whether the pet has developed a bond with the other party.

The concept of “pet support” has not taken hold in Canada. Indeed, a quick search on the Canadian legal database, CanLII, for “pet support” yielded no results.

What’s interesting about the Moore/Adams case is the framing of support for the pets – the headline states Moore is seeking “pet support”, however it is more likely correctly characterized as spousal support with care for the pets as one of the bases of entitlement.  Some forward thinking courts in the United States have made awards for access and maintenance of pets, however whether this approach is likely to take hold in Canada any time soon is unclear.

Some courts may be willing to resolve pet ownership disputes, however the case law suggests that judges often find this a waste of judicial resources. For instance, in Warnica v Gering, 2005 CanLII 30838 (ON CA), the Court of Appeal agreed with the lower court’s decision that the dispute over the pet was a waste of the court’s time. The court’s decision in this case was at least due in part to the fact that the separating couple had merely been dating and never cohabitated.

Generally speaking, most parties should try to sort out ownership of the pet themselves, without the intervention of the courts. Coming to an agreement outside of the court process allows the parties, often with the assistance of their lawyers, to develop creative solutions that work for their particular situation. For instance, one party keeps the pet and the other party visits the pet occasionally, or the parties share ownership of the pet and shuttle him/her back and forth. This scenario often works for families where the children split their time between the two homes and Fido is simply transported with the kids, however it may not work as well if the pet in question is easily stressed out by travel.