Animals R Us – Part II

When a pet’s parents divorce we ask: “whose pet is it anyway?”

Dear Readers:

As with anything any 2 people acquire together, pets have become just one more “issue” to fight over when separation or divorce takes over the minds and souls of the owners. With more and more households in North America becoming pet owners, pet custody litigation is on the rise.

In the United States, according to the APPA (American Pet Products Association) in 2012 there were 83.3 million dogs owned and 47% of households had at least 1 dog. There were 95.6 million cats owned in 46% of households.

In Canada, for 2014, the Alberta Agriculture and Rural Development Department estimates that 57% of Canadian households own pets (7.5 million homes) with cats topping the scales over dogs. Roughly this equates to 5.9 million dogs and 7.9 million cats.

The most prevalent age level for pet ownership, at 75%, belongs to the 45-54 year olds, followed by the 25-34 year old group. What does this mean? Well several things can be gleamed from these statistics.

Firstly, and while the “happy” couples are together, they tend to spend more on their fur babies, although fish, birds and small mammals are included in the numbers above.

Secondly, and did you know sales of pet products and services, in just the United States, reached a staggering $73 billion dollars in 2014.

Thirdly, why is all this important? Glad you asked! Because the more money people spend on their pets, the more the pets become important and the more attached the people are to these loving creatures they spoil. After all, single owners usually have more disposable incomes nowadays, and their pets are their “children”.

Court cases can run the gamut from Small Claims actions, based on strict ownership and monetary claims, to Divorce files where spouses make requests which can be from just wanting access, to custody [share or sole], to asking for support.

While pets may be still considered mere “property” in the eyes of the law, caring owners see them as an integral part of the family. Sometimes, more loved than the 2-legged relatives. After all, the pet loves unconditionally.

In certain cases, the pet(s) follow the children who go between mother and father, after a split, for access.

People often refer to themselves as their dog’s “daddy” or “mommy”. They take them everywhere, including on family trips by air, stay in dog friendly hotels which often have room service for dogs, attend doggie weddings and birthday parties, and even leave their fortunes to their BFFs!

However, in a case in Ontario in 2004 [light years ago in terms of the importance pets have taken on in the last 10 years], the issue, pursuant to the Motion filed by Mr. B, was to obtain “shared custody of the pet dog – Tuxedo”. In paragraph 29 of the decision, the Court determined that event though Ms. A. “gave Tuxedo” to Mr. B, as a “gift”, after she purchased the dog, as the dog had always remained in the care of Ms. A after the couple split, Mr. B’s claim for shared custody was dismissed. The Court therefore did not have to determine if access time was or should be possible. One can speculate what would have been the result if the dog was paid for by one party but officially “adopted” from a shelter by the other party.

A more recent Small Claims case in Nova Scotia in 2013 involved a same sex couple and a Chihuahua named Tiny Tim. Again, we have Birthday gift from one partner to the other. Common Law (not the erroneous living arrangements in Quebec) was used to determine that the pet was “property” and because Tiny Tim was a “gift”, the recipient party had the better legal claim of ownership (the opposite of the Ontario case).

Just remember, pets can become the focal point in a childless couple relationship. In San Diego, a greyhound named Gigi became the center of a 2 year $100,000.00 + Court battle. Animal experts were involved [o.k. it’s L.A.] and videos of “A Day in the Life…” with Gigi were filed. Finally, the wife won custody.

In North Vancouver, a lawyer opened [in 1997], an office devoted exclusively to pet and animal law, [which included dog bites, tenant dog issues and breeder contracts].

In Saskatchewan, a fight ensued over an 11½ year old Husky named Shikydoe. The husband had moved to Australia and had given a goodbye card to the dog and left Shikydoe with the wife. The husband subsequently moved back and the former couple commenced sharing weekend access of the dog. However, disputes arose and they ended up in Court where the Judge considered the best interests of the dog and ordered joint custody 1 week/1 week.

As in every developing area of new law, we have a long way to go, and sheer numbers and economics foretell of many pet stories still to be written. Now off to the New York Westminster Dog Show and a Pug wedding on Valentine’s Day. I may even hand out my business cards. Linda Hammerschmid

Me Hammerschmid is a practicing Family Law Attorney since 1982 and Senior Partner at Hammerschmid & Associates, 1 Westmount Square, Suite 1290, and a founding and current member [past Secretary for 28 years] of The Family Law Association of Quebec. She can be reached at 514-846-1013 or hammerschmid@vif.com. Inquiries treated confidentially.

A frequent guest on CBC TV/Radio, CTV and CJAD on Family Law, Me Hammerschmid will be a monthly guest with Dr. Laurie Betito on CJAD’s Passion, on the last Thursday of each month.

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