Who gets Fluffy? Lawyers see spike in pet custody cases as couples split under pandemic pressure

When Kate Peterson and her girlfriend broke up in 2019, she assumed their cat, Penny, would leave with her. After all, she was the only one who had signed the adoption papers two years earlier.

"My ex had a lot of cats growing up and was like, 'This is your cat. You get to pick her out. You get to make the final decision. You get to name her,' " Peterson said. "I was under the impression that she was my cat."

After their breakup, they agreed to share custody — but about a year later, Peterson's ex texted her out of the blue to say she was keeping Penny for good.

What ensued was a costly two-year battle through British Columbia's courts as Peterson fought to reinstate their custody agreement. It ended with a heartbreaking result: a judge awarded her just five days a month with Penny.

"It was super disappointing, but it'd also been two years since I'd seen my cat," she said.

"She's 10 now and I missed out on a huge part of her life, so it was good to know that I at least was entitled to something, and something that's legally binding."

Canadians are increasingly calling lawyers for help deciding who gets to keep a pet in recent years — especially over the past 18 months, as COVID-19 lockdowns and work-from-home policies forced couples to spend more time together, pushing some relationships to a breaking point.

Pet custody battles involving lawyers are also on the rise in the U.S. and U.K., The Guardian recently reported. 

"I have seen a precipitous spike in [animal custody] cases since last spring," said lawyer Victoria Shroff, an adjunct professor of animal law at the University of British Columbia.

"[Lawyers] who do straight-up human divorce cases will tell you that divorce and separation is up across the board — and that's the same case in pet custody."

Such cases aren't just limited to couples fighting over cats and dogs. Lawyers who spoke with CBC News said they have seen animal custody cases involving parents and kids, roommates and friends at loggerheads over reptiles, horses and even pot-bellied pigs. 

Pets can become pawns in a protracted and pricey legal fight — sometimes overshadowing decisions about who gets the kids.

Jessica Bonnema, a family lawyer at Siskinds LLP in London, Ont., remembers one colleague working on a divorce involving three children and two cats.

"One of the parties was more concerned about his favourite cat staying with him than negotiating the parenting schedule," Bonnema said. "And the judge said, 'Listen, cats are personal property and children are not.' "

Risking heartbreak in court

Because laws in Canada view pets as property, each side's investment in the animal can be a critical factor in a judge's decision about who is the rightful owner. The outcome can also vary greatly depending on where in Canada it takes place.

Take the case of Mya the bernedoodle: in 2018, Newfoundland and Labrador's Court of Appeal decided the dog should go to the man who had originally paid for it — even though he and his girlfriend adopted the dog as a couple, and she spent considerably more time caring for their pet.

On the other side of the country, judges in British Columbia are increasingly likely to consider what is in the pet's best interest, including which person can dedicate more time to the pet's care and whether it is bonded with a human or another animal.

"That really does show how the law is evolving to recognize that animals are more than just property," said Vancouver lawyer Rebeka Breder, an animal law specialist who worked with Peterson on her case, and who has also seen a spike in pet custody cases over the past 18 months.

In Ontario, pet ownership case law is also evolving, with judges beginning to weigh which human has spent more time caring for the pet, including trips to the vet, buying food, going on walks and picking up poop, in deciding who should get custody.

Bonnema points to one of her cases involving parents fighting over who would keep the family dog.

"Ultimately, what the judge said is, 'The children have such an attachment to the dog that the dog will go where the kids are,' " she said. "Sometimes that means that the dog goes back and forth, and in other cases, that means that the dog stays at the home where the children primarily live."

In some custody disputes involving more than one family pet, judges have ordered the animals be split up.

Given the patchwork of how cases play out across Canada, lawyers say it's better for pet parents to try to reach an agreement outside of court, if they can. "When you do your own private settlement, you have so much more certainty," said Shroff, the UBC law professor.

Keep a pup-er trail

Lawyers and pet owners who spoke with CBC News say they hope Canada's animal laws will eventually regard pets more akin to children than property. Until then, however, many more pet owners are likely to be left broken-hearted in courtroom disputes.

Experts say keeping documentation is one of the most important things a pet owner can do to help ensure they retain custody in case a relationship breaks down. That includes keeping hold of ownership papers, veterinary records and bank statements showing who paid for pet food.

Some owners are going so far as to sign a dedicated "pet-nup" or writing their pet into cohabitation agreements or marriage contracts, to avoid a costly and fraught battle, should their relationship end in future.

The Montreal SPCA has created one such draft "animal custody agreement," which says that in the case of a rupture in a relationship or living arrangement, the two sides will decide a pet's future home based on what is in its best interests, including past care and the level of emotional attachment of either owner. 

After a breakup, if there's no existing pet custody plan, Breder suggests putting any future agreement in writing — whether that's a formal contract or just a text message.

"It's in the best interest of everyone — of the couple splitting up, and the animal being shared — so that everyone understands what their expectations are, and what their obligations are," she said. "Even though it may be an amicable breakup, at some point, it may not be."

Peterson agrees. She wishes she'd kept more documentation that could have helped her keep greater custody of Penny.

"I was always under the impression that should anything happen in our relationship, that she would stay with me," she said.

"Get things in writing, keep your receipts, because it can be awful afterward."