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Family, Mediation

What happens to pets in divorce?

The question of who gets the family pet after a separation is one that often arises in mediation — particularly since the courts refuse to handle “custody” over animals, says Oakville family lawyer and mediator Cathryn Paul.

“It really has been shut down by the family law courts,” says Paul, who practises under Cathryn L. Paul, Lawyer, Mediator, Arbitrator.  “They’re seen as any other chattel by the law.”

Still, there is no denying the emotional attachment adults and children have to their dogs, cats or other animals, so mediation can offer an ideal environment for negotiating who cares and pays for the animal after a marriage breaks down, Paul tells AdvocateDaily.com.

“Pets are an incredibly important part of many families, and the strict legal analysis doesn’t recognize that.”

In Warnica v. Gering, 2005 CanLII 30838 (ON CA), the Ontario Court of Appeal dismissed an application brought under the Family Law Rules for shared joint custody of a pet dog named Tuxedo.

“Given the unusual nature of this claim and the material before him, the case conference judge was entitled to conclude that the claim would likely fail both on jurisdiction and on the merits, and that in view of the pressing workload of the family court the case did not warrant a full trial,” the appeal court judges ruled.

The decision indicated if a dog is considered property, then in that sense it is no different than something like a ring or a painting which could be sold with proceeds divided between the spouses.

“But that’s really not what either party would want,” Paul says.

Alternatively, couples who need to come to an arrangement regarding a pet must work through some form of negotiation, she says.

“It’s often a matter of determining where the pet lives, how the pet should be cared for, and how expenses for them should be met,” Paul says. “I’ve had some dogs that go back and forth between homes along with the kids. So we can be really flexible.”

Pets can be the one thing that keep both adults and children grounded during the emotional upheaval of a divorce, she adds. 

“Parents really need to be very aware of how to help the kids cope with separation,” she says. “Sometimes that means doing things that are a little harder.”

That might mean arranging for the transfer of the pet from one home to another, sharing future pet expenses or moving into a home that accepts pets.

Paul says the mediation process provides tools and methods that can make such negotiations smoother, including brainstorming ideas and discussing concerns. She also advises ex-spouses to ensure pets are part of any separation agreement.

Through her practice, Paul says she has witnessed countless times the impact pets have on individuals going through a divorce, and it’s a role that shouldn’t be discounted.

“One woman come in for her initial meeting with me and she brought her dog for comfort because she was having trouble coming to terms with the separation,” she says.

“It was quite amazing because when she started crying and looked in distress, the dog jumped up on her lap and started licking her face.

“Simply treating the family pet as a ring or a painting just doesn’t honour that role.”

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