In Quebec, laws concerning property also apply to animals as per article 898.1 of the Civil Code. However, the Code also recognizes that animals are sentient beings and are not a thing. In the context of divorce, animals are subject to the same rules as moveable property. Pet owners usually consider their pet to be another member of the family. Nonetheless, courts rule on the custody of animals based on who is entitled to the ownership of the pet at that time.
A case that was recently heard by the Court of Quebec explained how ownership of a pet is determined in the context of separation.
In the case, the couple initially divided their time with their dog equally after their separation. However, one party, who will be referred to as A, wanted to be the sole owner of the dog. Only A’s name was on the adoption and registration papers, as well as the veterinary file. Nonetheless, both parties contributed equally to the cost and care of the pet. The other party, B, did not see a reason to put their name on the documents because they were a couple at the time. B was a part of the decision to adopt the dog during their relationship.
The court ruled that A and B were co-owners of the dog based on the circumstances of their situation. Therefore, the fact that only A’s name appeared on the official documents, did not necessarily mean that they were the sole owner. Ownership of a pet is determined by the existing state of affairs. The parties’ joint care and decision making with respect to the dog were important factors in determining the ownership.
Following the decision that they were co-owners, the parties wanted to put an end to their joint ownership of the dog. Therefore, they decided to explore their options and try to come to an amicable agreement. If they are unable to do so, the court would intervene.
We have seen that the indivisible nature of an animal belonging to individuals in undivided co-ownership creates significant roadblocks when the disposition of the animal is at issue. The same cannot be said in the case where the animal is the exclusive property of one individual. It is useful to illustrate this point by way of example.
Consider a situation where Costa decided surprise his partner Ophelia on her birthday, brings her to the local pet store and buys her the puppy she has always wanted as a gift. She is smitten and names her Hope! Unfortunately, Ophelia’s joy is short-lived – two months after taking possession of her puppy she discovers that Costa has been having an affair. Following discovery of her partner’s infidelity, she confronts him over dinner at their residence and a heated argument ensues. The police are called, and Costa is ordered to gather his personal belongings and leave the family residence. As he is leaving Costa grabs Hope and advised the police officer the dog belongs to him and produces the receipt from the pet store which bears his name. Ophelia protests vigorously, and advised the officer that Hope was gifted to her by Costa. Unfortunately, because she is unable to provide documentary evidence of her title, the police allow Costa to leave with Hope. Ophelia is devastated but gathers the courage to consult with an attorney the following day, who advises her to file an application with the Court to revindicate her property rights as a donee, and ultimately have Hope returned to her. He also advises her that although article 898.1 of the Civil Code of Quebec grants animals a quasi-protected status as sentient beings, in law they continue to be qualified as moveable property, and that her claim for revindication would allow her to seize the animal before judgment as of right pursuant to article 517(1) of the Code of Civil Procedure. Relieved, Ophelia instructs her attorney to file the requisite proceedings and seize the animal before judgment. The following week, Costa receives service of Ophelia’s proceedings, and the bailiff proceeds to seize Hope before judgment and entrusts it to a third party.
The best interest of the animal is not considered by the courts in the event of separation or divorce. The Montreal SPCA has created an animal custody agreement which takes into account the well-being of the pet. The agreement includes factors such as the ability to care for the animal and the animal’s display of attachment towards each spouse. However, the Civil Code of Quebec does not include such a consideration for the time being.
Montreal SPCA: https://www.spca.com/en/divorce-and-separation/
