When a relationship breaks down and parties separate or divorce, a number of difficult questions will inevitably arise. What should custody of the children look like? What should be done with the matrimonial home? How should assets be divided? The Courts and the legislature have been thorough in providing individuals and lawyers with basic guidelines to help resolve these difficult questions. However, one issue which has only recently begun to gain traction in the Canadian Courts is: what should parties do with a pet after they separate? Most pet owners will agree that their beloved pets form an irreplaceable part of the family. But how does the Court deal with pets in dispute after a relationship breakdown?
A recent case out of the Nova Scotia Small Claims Court, Hawes v. Redmond 2013 Carswell NS 1064, answers the question of post-separation pet custody in a humorous and concise way. In this case, a same-sex couple owned a long-haired Chihuahua named Tiny Tim, sometimes referred to as just Tim. Tiny Tim was given to one of the parties by the other as a birthday present. After the parties separated, a dispute arose over who would keep Tiny Tim. In this case, the Court explained that, unlike child custody cases, pet custody cases should not be decided based on the best interests of the pet; instead, they should be based on who has the better claim to legal ownership. The Court confirmed the common-law assumption that pets are property, and thus should be treated in the same way as any other type of property. Ultimately, the Court here found that Tiny Tim had been intended as a gift by one of the parties to the other, and thus the party who had been gifted Tiny Tim had the better legal claim to ownership.
While this case is certainly not binding in Alberta, it presents interesting insight into how the law regarding pet custody post-separation may develop in Alberta. Although many pet-owners treat their pets as children, the law does not seem to treat pets and children in the same way. Despite the fact that Tiny Tim was a living creature, and surely much more adorable than other types of property (like a piece of furniture), in law he was treated akin to any other type of property when the time came for matrimonial property to be divided.