Custody of the dog? Seriously, we get asked about that these days from concerned dog parents who are separating.
Just take a walk and observe. People love their dogs. People really really love their dogs.
Couples (often who don’t have children) will often treat their dog as if their dog was their child. If the dog is not actually their surrogate child, the dog is, at the very least, a totally significant member of the family.
I remember attending my friend’s Labrador Retrievor’s 1st birthday party. Yes, Sunny even had cake and other doggie guests at his party. The cake itself was beautifully decorated and made out of liver . . . . . . yes, that happened. My Jack Russell Terrier (Dogger), a puppy at the time, attended the birthday party, ate the cake and threw up . . . That happened too. But I digress.
More and more often lawyers are asked questions about who gets custody of the dog. Along with assisting clients with issues such as figuring out the parenting plan for children, figuring out who has what parenting responsibilities, how the assets are to be divided, and figuring out support, people also want us to help with the issue of who gets custody of the dog.
Here is an example of a question about custody of the dog:
I recently split from my ex, with whom I shared our named Natters. We got her as a rescue dog a few years ago. We both love her so much. When we split, things were fine. We rotated and Natters was with me on weekends and my ex during the week. This worked out great because of our work schedules. Each of us had her on our off times. But now that I am in a new relationship, things are tense. When my ex found out, he cancelled dropping Natters off at the last minute, and now I haven’t heard from them in two weeks. What do I do? Can I enforce our agreement for shared access to Natters? If we can't agree, who gets custody of the dog?
Unfortunately for our Canine-less Client, dogs are considered property in Canadian Law. They are treated as property just the same as a couch, car, or set of silverware. Dogs are not subject to custody arrangements no matter how much we love them.
In 2012, in Kitchen v. MacDonald (2012
BCPC 9) the Provincial Court of British Columbia was asked to make a decision
relating to dog custody. The Applicant asked for an order from the court that
would essentially result in having each party having possession time of the dog
(like parenting time with kids, but with the dog). The court said no way. It
would not make any such order.
A court is limited to making a determination about who owns the dog, much like it would a car or bicycle. It will not make access arrangements.
In determining ownership of a dog the court will look at the following factors:
In the Kitchen case the respondent showed that the dog was a gift to her from her parents. She was listed as the dog's owner on veterinary records and had licensed the dog with the City of Kamloops. She was also responsible for paying all veterinary bills and most other costs associated with the dog.
The Applicant in the Kitchen case had the dog some days while the respondent was at work and paid for food and other minor costs during these visits. He also provided evidence that the respondent referred to him as the dog's "daddy" and emphasized that the dog had been treated as their "child" during the relationship. The judge found the arrangement, "despite the sentimental aspects, does not create a beneficial or legal interest in a dog".
Dogs are not kids says our court system. I know, harsh.
Also, on another totally unrelated note, have you read The Art of Racing in the Rain by Garth Stein? Seriously, one of my favourite books ever.
Written by Val Hemminger, lawyer at Hemminger Law Group Westshore