Who gets the dog? Pets in separation law, and how to write a pet clause that works

The dog is not a joke. For couples without children, and for many with them, the animal is the emotional centre of the household and the fight over it can be as bitter as any parenting dispute. Lawyers know this and dread it, because for most of legal history the answer was blunt: a pet is property, ownership decides, and nobody gets "visitation" with a couch. That is starting to change.

The traditional rule: property

In most Canadian provinces and most US states, a companion animal is personal property. The court asks who owns it, and divides it like any other chattel. Evidence that matters:

• Who paid for the animal and whose name is on the purchase or adoption contract
• Whose name is on the municipal licence, microchip registration and veterinary records
• Whether the animal was acquired before the relationship (usually separate property)
• Who paid for food, insurance and vet bills

Under this approach a court will not order shared time. It picks an owner. Judges have been openly reluctant to spend court resources on "custody" of animals, and some have warned parties that pursuing it is a poor use of their money.

The shift: welfare-based approaches

British Columbia

Since January 2024, BC's Family Law Act has treated companion animals as a distinct category. Courts deciding who keeps an animal must consider the circumstances in which it was acquired, the extent to which each spouse cared for it, any history of family violence, the risk of cruelty, the relationship a child has with the animal, the willingness and ability of each spouse to care for it, and any other relevant circumstance. Courts still cannot order joint ownership or shared possession, but spouses can agree to it themselves, and the court will consider such an agreement.

Other provinces

Elsewhere in Canada the property analysis largely persists, though some judges have considered who was the primary caregiver as part of determining ownership. Reform is being discussed in several provinces.

United States

Alaska, Illinois, California, New York, New Hampshire, Maine, Rhode Island, Delaware and a growing list of states have amended their divorce statutes to allow or require courts to consider the animal's well-being when allocating ownership. Some permit joint ownership or shared arrangements. In the remaining states, property rules apply, though courts sometimes consider caregiving as evidence of ownership.

What this means for you

In a welfare jurisdiction, the case is won on evidence of care: who walked, fed, trained, took the animal to the vet, and who has a home suited to it. In a property jurisdiction, the case is won on paper: receipts, registrations, records. In both, the best outcome is an agreement, because courts in most places still will not order shared time, and an agreement can.

Writing a pet clause

A pet clause in a separation agreement should address:

• Ownership. Who the legal owner is, and whether that changes. If one person owns and the other has time, say so; if you are agreeing to shared ownership in a jurisdiction that allows it, say that.
• Possession schedule. If shared, the actual schedule, including holidays. Many couples align it with the children's schedule so the animal travels with the kids.
• Costs. Who pays food, insurance, grooming, routine vet care, and how major medical costs are shared and decided. A cap above which both must agree is common.
• Decisions. Who decides on major veterinary treatment, and what happens if you disagree. End-of-life decisions belong here; it is painful to write and far worse to fight about later.
• Moving. What happens if one person relocates.
• Enforcement. What happens if one person refuses to return the animal. Some agreements provide for a specified payment; some provide that ownership transfers.
• The end of shared arrangements. A right for either party to terminate the sharing on notice, with the animal going to a named person, so nobody is locked into contact they no longer want.

Children and the family pet

Where there are children, courts and parents increasingly recognise that the animal is part of the children's stability. Keeping the pet with the children as they move between homes is a practical option that sidesteps the ownership fight, provided both homes can accommodate it.

A note on proportion

Litigating over a pet can cost more than the household's annual income. If you cannot agree, a mediator can usually resolve it in a session. If it goes to court, be realistic: in a property jurisdiction you will get an ownership decision and nothing more.

This guide is legal information, not legal advice, and it is written for a general audience across Canada and the United States. Family law is provincial and state-based and changes over time. Before you rely on anything here for your own situation, confirm it with a qualified family lawyer in your province or state. FairWell can connect you with one through the professional directory.