Dealing with pets after separation, part 2: Going to court.

• Author: Boyd, John-Paul

In the first half of this article, I wrote about the laws on personal property that might apply when a couple can't agree on how they'll manage their pets after they separate. In this half, I'll talk about the sorts of orders you can and can't ask the court to make about pets, assuming you and your ex haven't been able to settle the problem.

If you must go to court about your pet, remember that because pets are personal property, the "best interests" of your pet aren't relevant the way they would be if you were asking for an order about a child. Nor is who loves the animal more or, usually, who would provide the pet with a better home. What counts is ownership. As the adjudicator put it in Hawes v Redmond, a 2013 decision from Nova Scotia:

"[26] I have no doubt that the dog currently has a good home with Dr. Hawes and her family, but that is not the point. This case is not about the best interest of the dog; it is about who has the better claim to legal ownership. The analysis is no different than it would be if we were talking about a bicycle." Here are the orders you can and can't ask the court to make about your pets.

You can't ask for custody of the animal.

"Custody" is a Divorce Act term that applies to children. Human children.

What you're probably looking for instead of a custody order is an order that gives you the right to have the animal that's enforceable against your ex; more on this a bit later.

You can ask the court to make a declaration about who owns the animal.

If you do this, you're asking the court to decide who the animal's owner is. This is helpful when there are doubts about who owns the animal. Besides, being the pet's owner usually lets you say where the animal lives... like, for example, with you.

If you lose, however, the court will most likely declare that your ex owns the animal. The court isn't likely to refrain from making a declaration about who owns the animal once the issue has been brought up.

You can't ask for access to the animal.

"Access" is also a Divorce Act term that only applies to human children.

The closest I can put the idea of access into an order about property is an order that would give each person the right to possess a pet on an alternating basis. Although there's nothing stopping anyone from agreeing to that in a contract like a separation agreement, and the court would probably make an order like that if everyone agreed to it, the idea of a right to the possession of property on a periodic...