Tooth and Nail for the Pets of Divorce

One of the chief aspects concerning nearly every stage and instance of divorce is division. This division ranges from emotional to material and may affect everything in between.

Money, wealth, and assets are often the subject of division, whether through a prenuptial agreement, a separation agreement or by an order of the court.

The process of division extends to custody of children, who are living participants with feelings and opinions, which  becomes more complex than splitting up cottages, cars, and coin collections.

Pets, however, sit somewhere between possessions and individuals in the process of division as they could be argued to be both in the “possession” and “companion” categories simultaneously.

With a potentially higher emotional investment than with regular inanimate property, the ownership, or perhaps co-ownership of furry, fuzzy, or feathery friends may ignite a more passionate battle than with other possessions.

Pets are considered by the courts to be a variant of property. This was bluntly stated in the Ontario case Coates v. Dickson,  2021 ONSC 992, as follows: “However much we love our dogs, the law treats them as an item of personal property. The question is who owns the creature.”

Resting on this fundamental tenet, the courts struggle with how to allocate such emotionally-burdened property.

In order to determine who owns the pet, courts have traditionally looked at cold, bare receipts, in other words, the owner is strictly whoever paid for the acquisition and care of the pet.

This narrow approach has been supplemented, permitting the court to consider a more expanded set of factors.

In Coates, the judge noted that “the broader, more contemporary approach looks at the relationship between the parties and the dog.” The courts can therefore also consider the following:

• Whether the animal was owned or possessed by one of the people before their relationship began;
• Any agreement as to ownership;
• The nature of the relationship between the people at the time the animal was acquired;
• Who purchased and/or raised the animal;
• Who exercised care and control of the animal;
• Who bore the burden of the care and comfort of the animal;
• Who paid for the expenses related to the animal’s upkeep;
• Whether at any point the animal was gifted by the original owner to the other person;
• What happened to the animal after the relationship between the litigants changed; and
• Any other indicia of ownership, or evidence of agreements, relevant to who has or should have ownership of the animal.

Despite the expanded list of considerations, the pet is not considered at law to be a family member and therefore child custody principles do not apply. In Almaas v. Wheeler, 2020 BCPC 51, the judge quoted an Ontario case, Warnica v. Gering, 2004 CarswellOnt 5605 (Ont. S.C.J.),  as follows:

“[A pet] does not readily lend itself to physical division. A pet could be sold, with the proceeds to be divided in accordance with any determination as to the parties’ respective interests therein; however, that is something that few would want […] A pet could be shared, as happened in the case of Rogers v. Rogers. In my view that would be akin to a custody access/order. I do not believe that any court should be in the business of making custody orders for pets, disguised or otherwise. To the extent that any of my colleagues may feel otherwise, I respectfully disagree. Obviously, I acknowledge that pets are of great importance to human beings […] Some may consider them to be children; however, they are not children.”

Coulthard v. Lawrence, 2011 CarswellOnt 15952 is a particularly tortured case dealing with interim possession of a pet. The judge appeared to really want to make a “custody” order but knew he could not. The judge quoted an Ipsos Reid poll which found: “Eight in ten of the pet owners … (83%) consider their pet to be a family member; […] This perception of the pet as family translates into ‘parental’ behavior for many pet owners: seven in ten (69%) pet owners allow their pets to sleep on their beds and six in ten have their pet’s pictures in their wallets or on display with other family photos. Almost all pet owners (98%) admit to talking to their pets.”

The judge pointed to the fact that “about 40 states plus the District of Columbia recognize pet trusts in some form […] a trust may be created to provide for the care of an animal.” The judge then added: “I’m not quoting what the actual uniform code trust provisions are, but simply to indicate how advanced American law has gone, to allow for the protection of animals, to elevate them in a way that inanimate personal property has no protection.”

After some circuitous reasoning, in the Coulthard case the judge declined to grant interim ownership of the dog to the person who had paid for the dog, and instead granted ownership to the party he viewed as the best dog parent, and the one most likely to share the dog with the other party.

Ideally an agreement between the parties will prevent such torture of judges. A judge knows a pet is not a sofa but has limited options regarding how to deal with this fact.

A timely pet-related clause could prevent the need for claws afterwards.

During the divorce of two famous Indian actors, Samantha Ruth Prabhu and Naga Chaitanya, the ownership of their dog, Hash, was a feature. The much-loved celebrity couple is very much in the public eye and each of them post photo updates of Hash on social media. It was reported that “while their romantic journey diverged after four years of marriage bliss, their shared love for Hash is apparent as they continue to prioritize the well-being of their furry family member.”(Sreeja, 2023)

In another celebrity divorce, the fate of the furry friends was less amicable. During her divorce with Sam Asghari, American pop star Britney Spears was reportedly prepared to return her engagement ring but was “…  not willing to let him take custody of their two dogs.” (Solanki, 2023)

The dispute involved a Doberman named Porsha and an Australian Shepherd named Sawyer. Porsha had been given to Spears by Asghari, while Sawyer was adopted by the couple.  As of August 2023, it was reported that Spears is “ferociously protective” of both dogs and “is not willing to give them up without a fight.” Spears and her legal team were prepared to go for the throat. Thankfully, Spears and Asghari finally reached an agreement concerning the dogs. Asghari has full custody of Porsha, while Spears has full custody of Sawyer.

On January 15, 2024, the British Columbia Family Law Act was updated such that the best interest of the pet can be considered by the court.

The pet-related revisions fall under the “property” section of the Act, and allow the court to do one of two things: (a) it can uphold an agreement between the parties to jointly own and/or share possession of the pet; or, (b) the court can grant exclusive ownership or possession of the pet to one party. When determining who owns the pet, the court must consider the best interest of the pet.

What the court cannot do is: (a) order that the parties jointly own the pet; or (b) order that the parties share possession of the pet.

Despite the clear prohibition to the contrary, in March 2024 a B.C. judge made an order for “joint custody”. (Bayat v. Mavedati, 2024 BCSC 619).  In his judgment, the judge made the following comment “the recent amendments to the Family Law Act essentially put the ownership of a companion animal, such as Stella, in the context of something that goes beyond ownership of a chattel. The sentience of the animal is recognized to the extent that the criteria reflect.”

The judge then made the following ruling: “Both the claimant and the respondent have shown a deep concern about the well being of Stella, and I am satisfied that in the circumstances the custody of Stella should be shared on an interim without‑prejudice basis. So I am going to make an order that the claimant and the respondent share the custody of Stella 50/50 on a week-on/week-off basis, or subject to further agreement, or a court order.”

The judge did not comment on how he avoided the application of section 97 (4.2) of the Family Law Act, which prohibits the court for making an order for shared custody.

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Sreeja, Addla. Samantha Ruth Prabhu’s Pet Hash is Back to Her After Photo of Naga

Chaitanya Co-parenting Goes Viral. www.pinkvilla.com, October 18, 2023.

Solanki, Anushka. Britney Spears Holds Onto Dogs in Divorce with Sam Asghari, Set to Return Free Engagement Ring. www.pinkvilla.com, August 20, 2023