My wife and I are breaking up. She wants to keep our dog. So do I. Who gets to keep her?

It’s understandable that you and your wife both want to keep Coco, a valued member of your family. In fact, you can jointly own your pet or share possession of her if you agree together to do so. Depending on what you and your wife decide, you can make a written agreement that you:

• jointly own Coco,

• share possession of her, or

• give exclusive ownership or possession of Coco to one or the other of you. 

In the agreement, you can also set out details about where the dog will live, how she’ll be cared for, and who pays for what costs and expenses. If you decide to jointly own Coco, you might want to check out this template for a pet sharing agreement, created by a family lawyer teaming up with a lawyer who specializes in animal law.

If you can’t agree

If you and your wife can’t reach an agreement, you can ask a court to decide who gets to keep Coco. The court can make an order that gives one of you ownership and possession. Under the law, the court cannot declare that you jointly own the pet. Nor can it require you and your wife to share possession or "custody" of Coco, unless there was a prior agreement for sharing her. Coco would have to live with one of you full-time, unless you agree otherwise. 

If you and your wife had an agreement (even an oral agreement) to share Coco but a disagreement arises, you can start an action in Supreme Court. You can ask the court to enforce that agreement, to declare that you both jointly own the pet, and to order shared possession of Coco. Another option is to start an action in Provincial Court — but only about your dispute about Coco, not other family property matters. Provincial Court tends to be faster and less expensive.

If the matter ends up in court

Pets — or “companion animals'' as they’re called in the Family Law Act — are still recognized as “property” under the law. However, because of changes to the law in 2024, they are now given special consideration.

When making decisions, courts have to consider the “best interests” of the pet and those of the whole family. This includes the family pet, the separating spouses, and any children connected to the pet. That means the court should consider the well-being of everyone concerned and their relationships with each other. 

Under this section, the court must look at a broad range of factors in deciding who gets to keep the pet at the end of a relationship, including:

• the circumstances in which the pet was acquired 

• the extent to which each spouse cared for the pet 

• any history and risk of family violence

• a spouse's cruelty, or threat of cruelty, toward the pet

• the relationship a child has with the pet

• the willingness and ability of each spouse to care for the pet

If your case goes to court, the judge would take into account that your wife bought Coco. But they would also note that you’ve been doing more of the care. Overall, they would consider all the factors above and take a balanced approach in determining what living arrangements would best support Coco’s well-being going forward.