Which spouse can keep the animal in the event of separation? This question concerns1 more and more our courts, and a bill being studied in Quebec could change the situation.
More than half of Quebec households include a pet. Strong bonds of attachment are forged between the members of a couple and their animal, generally considered a full member of the family. When separating from a spouse, it’s not the cat or the dog you want to leave behind!
However, Quebec courts do not seem to take into account the complexity of the family animal’s situation or its interests.
Who will take best care of the animal? Who will meet their different needs? Who is the animal most attached to?
All these questions are overshadowed by just one: that of determining which member of the couple holds title to the animal.
It is therefore, as a general rule, the spouse who acquired the animal, that is to say who made the purchase or who signed the adoption contract, who is entitled to claim ownership at the time of separation.
By only being interested in the title of property, this judicial practice does not take into account the sensitivity of the animals or their well-being. However, since 2015, Quebec legislation explicitly recognizes that animals are sentient beings and that we have a collective responsibility to ensure their well-being.
Specific contexts
Restricting yourself to the question of property can also be harmful for other members of the family. For example, it could be beneficial for a child to maintain a bond with the family animal, in particular by allowing the latter to follow the animal as part of shared custody. The animal then offers a point of reference and emotional support in a context of separation.
In another register, we should also prevent the animal from being used in a dynamic of domestic violence. Too often we see controlling spouses intimidating their partner by threatening or hurting the family pet. If the controlling spouse has title to the animal, it becomes more difficult for the court to protect the victim from different control strategies. The fact that it is the violent spouse who holds the title to the property could even dissuade victims from leaving a situation of abuse, for fear of never seeing again the animal to which they are so attached.
All these problems could find a solution thanks to Bill 56, currently under study in the National Assembly of Quebec. This bill reforms family law, mainly by modifying the treatment of property used by the family at the time of separation. It provides the perfect legislative vehicle for rethinking the treatment of family pets in the event of separation.
In our opinion, parliamentarians should add a provision that allows judges to allocate ownership of the animal taking into account its sensitivity, its interests and in order to ensure its well-being.
Quebec would then be part of a legislative movement that is gaining more and more momentum in the West. We are thinking in particular of British Columbia, Switzerland, Spain, Alaska, California, Illinois, Maine, New Hampshire and New York which explicitly provide in their laws provisions concerning ownership or custody of an animal in the context of marital separation.
Quebec is ripe to join this movement in favor of animal welfare. Will our parliamentarians seize the opportunity?
1. Read the academic article “The family pet: a sensitive subject”
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