Pet Custody In Ontario During Divorce Or Separation

Oct 27th 2023

When families break down, the question of “who gets the dog” is often of fundamental importance to the parties. However, Canadian courts have historically regarded companion animals as mere property and ignored the emotional bonds between family members and their pets.

CURRENT APPROACH FOR PET CUSTODY CASES

More recently, courts across Canada have taken a number of approaches- Courts in Ontario lean towards a more traditional property analysis, whereas courts elsewhere have considered the possibility of looking into the pet’s best interests. For example, in the case of Almaas v. Wheeler, while considering the custody of two dogs, the Newfoundland court granted ownership of each dog to one of the owners. There is no one box that fits all the rules. The law in this aspect is evolving, and it depends on the facts and circumstances of each case. Given these developments, the time is ripe for the law to adopt a more consistent and compassionate approach to the question of who gets “custody” of the pets on divorce — one that reflects modern-day understandings of the relationships between humans and their pets. 

When it comes to pets in Ontario, when owners part ways, there are no custody determinations, no inquiries into the animal’s best interests, and no doctrinal basis for ordering access, visitation, or financial support. Rather, in Ontario courts, who gets the dog is typically determined by a straightforward property analysis, where the purchaser equals the owner. With few exceptions, and as unappealing as this may be, the law governing the ownership and continued care of pets has not kept pace with societal attitudes toward them.

To get a better understanding of how courts deal with the “custody” of pets of separated owners, we will answer a few questions:

 

HOW DOES THE LAW TREAT PETS IN CUSTODY CASES?

We understand that pets hold a special place in our hearts, and are often considered beloved members of our family. They provide us with unconditional love, companionship, and emotional support. However, when it comes to the legal aspects of separation or divorce in Ontario, pets are classified as personal property or possessions. This categorization may come as a shock to many who view their pets as akin to their furry children. The law views pets as no different from cars, furniture, or other tangible assets, and this can have significant implications during the property division process.

When disputes arise over pet custody, they are not treated in the same way as children in parenting cases. Instead, the court typically considers factors like ownership records, who has primarily cared for the pet and who purchased or adopted the pet. While the court aims to make decisions in the best interests of both parties involved, it does so with the understanding that pets are property.

The leading decision in Ontario in this realm is Warnica v. Gering, where the court stated “Whether in the Family Court or otherwise, I do not believe that any court should be in the business of making custody orders for pets, disguised or otherwise. To the extent that any of my colleagues may feel otherwise, I respectfully disagree. Obviously, I acknowledge that pets are of great importance to human beings. Strong bonds develop between them and the human beings that look after them. To some people, the relationship with their pets takes on a significance exceeding that of any other. They go to extraordinary lengths to preserve that relationship; even at a cost that some would say is disproportionate. Some may consider them to be children; however, they are not children. 

Similarly, in Coulthard v. Lawrence, an Application was brought to an Ontario court to settle the ownership of a couple’s dogs.  The Court maintained that pets are not considered family members, the ownership of the pets was to be decided on who had legal ownership and therefore the right to possess the dogs.

CAN A PET BE JOINTLY OWNED BY SEPARATING SPOUSES?

Yes, it is possible for a pet to be jointly owned by separated spouses in cases where a pet is acquired during a relationship or marriage, both partners might be considered legal owners, regardless of their marital status.  

However, in cases of separation and divorce, determining pet custody can become a complex issue. While pets are generally considered property as discussed above, courts recognise ownership of pets rather than custody of pets. Courts look at a number of factors in determining who gets the ownership of a pet on separation. The following paragraph will outline some of these factors. 

 

FACTORS THAT COURTS CONSIDER IN DETERMINING PET OWNERSHIP:

As such, when the issue of ownership must be decided in favour of one of the parties, the other will have to endure the loss of the relationship with the pet.   There are no special laws governing pet ownership that would compare to the way that children and their care are treated by statutes such as the Ontario Children’s Law Reform Act or the Divorce Act. In personal property law terms, if someone owns a pet and brings that pet into a relationship or if someone is gifted or acquires prima facie sole possession of a pet during a relationship then absent exceptional circumstances that pet remains their property when they leave the relationship. In determining who gets ownership of a pet, the courts will look at factors such as:

Who paid for the pet initially?

A tangible proof of payment, like a receipt, will be helpful in this regard.

Who paid for the veterinary care and daily needs of the pet such as food and grooming?

An owner who caters to the pet’s day-to-day needs and essentials is more likely to be considered the pet’s primary caregiver.

Whose name is listed as the owner on any licensing or medical paperwork?

A record of adoption, proof of purchase or a registration agreement may be useful in determining the pet’s owner.

Whether either party surrender possession rights when they left the marital home?

If either party left the matrimonial home in a manner that also cut off contact and ties with the pet, the probability of proving ownership is pretty feeble.

Is there any other evidence to support one spouse’s ownership of the pet?

This can include bank statements, a breeder’s certificate, a city license or being listed as the owner at a vet’s office.

CHANGING ATTITUDE AND MODERN APPROACH

Some out-of-province jurisdictions such as Newfoundland are now starting to recognise that pets are much more than inanimate objects and are beginning to consider their well-being in ownership or rather custody decisions. 

In the very few cases that are now gaining momentum, where courts do in fact treat ownership of pets equivalent to custody, custody arrangements for pets are worked out in a manner similar to child custody (now known as decision-making responsibility). The separating spouses can also choose to negotiate and agree on a visitation schedule, shared custody or sole custody, taking into consideration the best interests of the pet. 

It remains to be seen if the province of Ontario shall adapt to this new approach. 

WHAT CAN PET OWNERS DO TO KEEP THE CUSTODY OF THEIR PETS?

If you are in a cohabiting relationship and bring a pet into it, there are steps you can take to enhance your chances of retaining possession of your pet in the event of a separation. While the law still considers pets to be property, there are ways to help establish a strong claim to their custody in the event of a separation or divorce:

1. Ownership Documentation

   Ensure that all documentation related to your pet, such as adoption papers, purchase receipts, and veterinary records, is in your name. This helps to establish clear ownership and responsibility for your pet.

    

2. Microchipping
   

   Get your pet microchipped (if applicable) with your name as the identified owner and contact person on the chip. Not only does this help to have your pet returned to you if they ever get lost, but it can also be helpful in establishing an ownership claim.

    

3. Primary Caregiving
   

   Be the primary caregiver for your pet. This includes responsibilities like feeding, grooming, taking them to the vet, and arranging for their exercise and socialization. Maintaining a record of these caregiving activities can be invaluable in demonstrating your commitment to your pet’s well-being.

    

4. Financial Support
   

   If you can demonstrate that you have been primarily responsible for covering your pet’s expenses, such as food, grooming, and veterinary bills, it can strengthen your claim to pet custody.

    

5. Witnesses
   

   You can encourage friends, family members, or neighbours who have witnessed your role as the primary caregiver to provide a statement or testify on your behalf if necessary.

    

6. Pet Custody Agreement
   

   Consider drafting a pet custody agreement with your partner that outlines each person’s responsibilities and expectations regarding the pet. Although not legally binding, such an agreement can be of persuasive value if court proceedings are initiated.

    

7. Alternative Dispute Resolution
   

   In cases where you and your partner are on amicable terms, consider resolving pet custody disputes through alternative dispute resolution methods like mediation or negotiation. This can prove to be time-efficient and cost-effective. 

 

A FEW TAKEAWAYS TO KEEP IN MIND

1. Do not leave pet custody up to chance. Consider entering into an agreement with respect to your pet or prospective pets while entering into a relationship.
   
2. If you do not have an agreement in place, consider mediating the dispute to draw a settlement agreement. 
3. In the alternative, request a court order on ownership. 

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Disclaimer

The content provided in this article or blog is for informational purposes only. It is not intended to constitute legal advice or to replace the advice of a qualified legal professional. While we strive to provide accurate and current information, the law is complex and constantly changing, and each person’s circumstances are unique. Therefore, you should not rely on this information as a substitute for professional legal advice. This information does not create an attorney-client relationship between you and our law firm. We strongly recommend that you consult with a qualified attorney in your jurisdiction to understand your legal rights and obligations. Always seek legal advice before making any decisions that may impact your legal rights or obligations.