Separation Agreements: Don’t Forget to Include Your Pets!

As I wrote in a Blog recently, Canadian divorce courts routinely view family pets as “property” rather than the subject of custody orders:  When all else fails and a couple cannot agree informally on who gets the beloved pets in the divorce, a court will treat them just like any other marital property that is subject to being divided, and will do so based on the evidence and on various factors that determine which spouse is most entitled to them.

So how to prevent a court from having to decide who gets Fido in the divorce settlement?

The answer – as with all property that comes into the marriage – is a Separation Agreement.    A written contract, negotiated and signed by both spouses, can cover specific pet-related items such as:

• Which of you gets to keep the pets after you and your spouse separate or divorce.
• Who will be considered the primary decision-maker in connection with matters affecting your pets.
• Whether the other spouse (i.e. the one who does not get to keep the pets) is allowed any visitation rights or the right to take the pets from time to time.
• How or whether any expenses relating to the pets (including unforeseen ones such as veterinary bills) are to be paid, and by whom.
• Who is to be the pets’ veterinarian, and what medical treatments can or cannot be administered.

Too often, couples who are smart enough to have a Separation Agreement drafted will nonetheless overlook the need to include family pets in their contract.  (And in these cases, Canadian courts have sometimes resorted to simply including pets under the “general contents” clause of a more broadly-worded Separation Agreement).

But even if you and your spouse have the foresight to include your pets, there may be aspects and factors that are easily-overlooked when doing a final draft.  For example:

• What do the children want?   It may be best to have the parent with primary custody of the children to also take over care of the family pet.
• Who has the better physical space and best schedule to accommodate the pets’ needs?   One of you may be better-positioned to take the pets after divorce, usually because of a more flexible or less-demanding work schedule, or more pet-friendly living arrangements.
• Who can best take care of the pets’ needs?  In the grand scheme of things, the cost of caring for a pet may not seem like much, but it can add up, especially if there are unexpected veterinary bills to pay.  One of you may be better positioned financially to take over.

With all this in mind, it is important to ensure that when drafting a Separation Agreement, you give some careful thought to whether and how to include your cherished family pets into the mix.   Contact us for a consultation.