Who gets the dog in a divorce?
When a couple splits up they also have to split up their belongings and, if they have children, make arrangements to share their time with the kids. More and more people are also having to resolve how to split up the “Furry children”.
In fact, some couples have gotten into what basically amounts to custody disputes over the cat or dog. The law concerning “pet custody” is still in the process of developing and is not completely clear. There is no specific legislation that deals with the custody of pets in a divorce and there have been few reported decisions on the subject, although the issue of who gets the dog is often brought up in out-of-court negotiations and settlement discussions.
Who Gets the Dog in a Separation or Divorce?
Ideally you and your former spouse can simply agree on how to deal with ownership of the dog. If not, the law does offer some guidance on the subject.
In Manitoba dogs and other pets are considered personal property and belong to whoever purchased them or received them as a gift. This means that unless an exception can be found the dog belongs to its owner and they get to keep the dog. Issues such as who the dog is closest to, who has a better work schedule and is better able to walk the dog, and the dog’s well-being are not relevant to this discussion.
As an example, if Bill bought a dog from a breeder and received a bill of sale in his name only, this would be Bill’s dog and Jane would have no claim to it except the right to receive one half of its value at the date of separation. In other words, Bill would get to keep the dog but might have to give Jane financial compensation based on the dogs’s fair market value. It is important to remember that the value of the dog, just like any item of personal property, is determined by what third parties would reasonably be willing to pay for it on the open market [the so-called fair market price]. If the dog is a purebred, it may have some fair market value but in most cases Fido’s value lies in its cuddliness and while it may be priceless to its owner, no one else would pay money for it. Therefore, receiving financial compensation is a poor substitute for the true value of the dog which lies in its companionship and bond and cannot be measured financially. (You can probably tell that the writer of the article is an animal lover.)
The situation is more ambiguous when the dog was purchased jointly. Then it is not possible to resolve the issue based on ownership and some other way will have to be found. Although this area of law is still in flux there are three main ways in which the dog issue can be resolved:
When a couple splits up they also have to split up their belongings and, if they have children, make arrangements to share their time with the kids. More and more people are also having to resolve how to split up the “Furry children”.
In fact, some couples have gotten into what basically amounts to custody disputes over the cat or dog. The law concerning “pet custody” is still in the process of developing and is not completely clear. There is no specific legislation that deals with the custody of pets in a divorce and there have been few reported decisions on the subject, although the issue of who gets the dog is often brought up in out-of-court negotiations and settlement discussions.
Ideally you and your former spouse can simply agree on how to deal with ownership of the dog. If not, the law does offer some guidance on the subject.
Dogs Are Personal Property
In Manitoba dogs and other pets are considered personal property (no different than inanimate objects like a car or a baseball card) and belong to whoever purchased them or received them as a gift. This means that unless an exception can be found the dog belongs to its owner and they get to keep the dog. Issues such as who the dog is closest to, who has a better work schedule and is better able to walk the dog, and the dog’s well-being are not relevant to this discussion.
As an example, if Bill bought a dog from a breeder and received a bill of sale in his name only, this would be Bill’s dog and Jane would have no claim to it except the right to receive one half of its value at the date of separation. In other words, Bill would get to keep the dog but might have to give Jane financial compensation based on the dog’s fair market value. It is important to remember that the value of the dog, just like any item of personal property, is determined by what third parties would reasonably be willing to pay for it on the open market [the so-called fair market price]. If the dog is a purebred, it may have some fair market value but in most cases Fido’s value lies in its cuddliness and while it may be priceless to its owner, no one else would pay money for it. Therefore, receiving financial compensation is a poor substitute for the true value of the dog which lies in its companionship and bond and cannot be measured financially. (You can probably tell that the writer of the article is an animal lover.)
The situation is more ambiguous when the dog was purchased jointly. Then it is not possible to resolve the issue based on ownership and some other way will have to be found. Although this area of law is still in flux there are three main ways in which the dog issue can be resolved:
1. Negotiating for the Dog
The former spouses can negotiate and come to an agreement. The spouse who is particularly attached to the dog may be willing to give up something else in the negotiation to reach an agreement. Then the issue of the dog can be included in a separation agreement or bill of sale as part of the overall settlement.
2. Making the Dog Part of a Child Custody Case
Although there is no such thing as dog custody and judges do not have the authority to decide who gets the dog based on the dog’s best interests they can make regarding parenting arrangements and custody under the Divorce Act or the Family Maintenance Act which contain conditions for the best interest of the child. For example a judge can order that one parent not smoke during their time with the child, or that the child attend a particular school. Using this broad discretion to set conditions on the terms of custody and access, the court can also make orders with respect to pets. For example, if the judge determines that it would be in the best interests of the child, the judge could order that the parent who has custody also be given possession of the dog as a condition of custody. This way of deciding who gets the dog links the dog to the issue of custody and the best interests of the child. It obviously can only be used when the divorcing couple has actual children subject to the jurisdiction of the court. If they are childless or if their children are adults, then this option is not available.
3. Deciding Dog Ownership as Part of a Property Division
As indicated previously, a dog is considered personal property. In Manitoba the division of assets and debts is covered by the Family Property Act which, with few exceptions, requires that all assets and debts acquired during the married cohabitation of the former spouses be divided equally. In general the division takes place by the party who has more net assets making an equalization payment to even out the difference between the value of their asses. For example if Jane has a vase worth $100 she owes Bill $50. She does not have to divide the vase and half, obviously. However, the court can also order the transfer of specific assets in order to satisfy the amount owed to the other spouse. Usually, such orders deal with things such as transferring vehicles, or non- living items. However there is nothing in the legislation that would prevent a judge from ordering the transfer of living creatures as part of an equalization payment. More commonly this applies to divorcing farm couples. For example, the court could order that a herd of cows be divided equally instead of trying to determine their monetary value. In this example, the equalization would require the actual transfer of the cows.
Applying the same general principle, the court could order one spouse to transfer the dog to the other spouse as part of an overall equalization payment. However, even though this method may be available, I have never seen it employed in Manitoba. I suspect that the reason is that there are no guidelines on when and how a judge could exercise this discretion, and the court would not want get into essentially a dog custody case. It might be more willing to do so where the issue is more commercial than sentimental. For example, if the divorcing couple were dog breeders, and had a number of dogs, the court might assign an equal number of dogs to each spouse in order to equally divide these assets.
Conclusion
Of the three methods the first is the most common and the most reasonable. It is best to negotiate and arrive at a mutual agreement through a process of give-and-take. Most people can come to some sort of arrangement concerning the dog on their own and what they are willing to compromise in order to get it is entirely up to them.
I have occasionally seen orders that deal with possession of the dog as part of an access schedule. However few people are willing or foolish enough to spend lots of money to litigate custody of a dog and therefore both the second and the third method are rare.
Therefore, an answer to the question of who gets the dog in a divorce? The answer is “it depends.”
