“Fur babies” are an ever growing battle ground for divorcing and separating couples. This is often the case where the couple has no human offspring and the dogs have become the "children" of the relationship, gaining all of their "parents'" love and attention. (Before I get emails from cat owners, I’d like to mention that cats rarely come up in legal proceedings for some reason!)
Under the Family Law Act, SBC 2011, c 25 there are provisions for parenting children. In British Columbia, the courts consider what is in the “best interest of the children” when making provisions for a couple’s human children. There are however, no provisions in the Family Law Act for pets. There is no “in the best interest of the dog” test. Dogs are dealt with as property; plain and simple. This fact is a hard circle to square for people who love their dogs as much as they would love a child, but that is the reality.
In a case of “dog custody”, courts will first determine who owns the dog. If you brought the dog into the relationship it may very well be considered “excluded property” under the Family Law Act. In this scenario, you would argue that since you had your dog when you met your spouse, he or she has no claim to Fido. I have yet to see a case treated this way under the Family Law Act (which came into effect in 2013), but it would be an interesting case to make to keep the dog!
If the dog was acquired during the relationship there can still be an argument that one person owns the dog. For example, one party might say the dog was a gift given to him by his spouse, and that therefore he owns the dog.
However, dogs may also be found to be owned jointly by the couple. In these cases, the dog can be awarded to one party and the other party will be entitled to receive financial compensation that reflects the market value of the dog. While you might love your SPCA rescue pet, I can assure you that Fido doesn’t have significant market value! (Although I certainly recommend getting a rescue pet and helping a doggie in need!)
Like all legal issues, including those of child custody, the post-separation issues around your pet are best dealt with through respectful negotiation. I know many people who have shared pets after separation. The dogs love it and the couples learn to love it. If you are able to avoid court, you’ll keep money in your own pocket and out of a lawyers’.
~ Mark Norton