Breakdown of Marriage
Who Gets “Custody” of a Pet in a Divorce or Separation?
After the end of a relationship, the question of what happens to a family pet becomes a serious point of contention. More often than not, both parties to a divorce or separation are very attached to their “fur baby” and view it as an integral part of their life.
An early Ontario decision aptly describes the emotions surrounding pets and divorce. In Torok v. Torok, the court stated:
The issue involved essentially revolves around two cats, otherwise known as ‘Bogey’ and ‘J.R.’, and from a short review of the voluminous file, it obviously appears that the spouses herein, not having had any children, are behaving in a most vindictive way each to the other regarding the custody and access of these feline substitutes. Presently, I believe a motion is immediately pending, varying a judge’s order of custody to the wife, the husband moving against the wife for custody of the cats as I understand it.
Unfortunately, although courts and adjudicators are often asked to view children and pets equally in divorce proceedings, Canadian law has traditionally treated family pets as a personal possession or property, no different than a car or jewellery, to be divided between the divorcing parties.
The Law on Pets in Canada
In Ontario, pets are considered “property” under Part I of the province’s Family Law Act. Adjudicators in the province have been consistent in their treatment of pets, and have not applied a custody or access analysis to pets (although they have been asked to).
The leading Ontario decision on pets following breakdown of a relationship is Warnica v. Gering, where the Court stated that:
[w]hether 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.
Given the current state of Canadian law, what can separating or divorcing couples do about their pet?
Requesting a Determination about the Pet’s Ownership
Divorcing or separating parties can ask a court to make a declaration about who a pet’s sole owner is. The legal owner of a pet will be able to make major decisions with respect to the pet, such as where he/she is to live.
Generally, as with any other property, the person who bought the pet is its owner. In order to establish that you were the purchaser, you can submit evidence in the form of a receipt, bank statement or other document outlining details of the transaction. If these are not available, you may be able to establish ownership if you are listed as the owner of the pet:
- at a vet’s office;
- on a breeder’s certificate;
- on a city or municipal license.
If you received your pet as a gift, you may also be able to establish ownership. This may be difficult to prove as you will have to establish the gift-giver’s intention to give you the pet as a gift. Establishing intention will require evidence that the pet was a gift such as, for instance, a card or other message that says “Happy Anniversary, I bought you a kitten”, or the testimony of someone who can verify that you received the pet as a gift.
Requesting to be Compensated for Money and Time You’ve Spent on your Pet
If you cannot prove that you are owner of your pet, but your former partner can, you can request that a court declare that your former partner was “unjustly enriched” through the money and time you contributed caring for the pet.
If you can establish that you spent money on the pet, that you made non-monetary contributions to the life of your pet, AND that your former partner benefited from this, the court might make an order compensating you for your contributions.
Money spent on your pet will include things such as food, toys, vet bills, medication, pet insurance fees, grooming, etc. Proof of spending includes grocery or pet store receipts, receipts for groomers, and similar. Your total overall spending on your pet may be hard to establish as many people do not keep receipts going back years and years.
Non-monetary contributions may include time you spent walking, playing with, bathing/cleaning your pet, or otherwise caring for it. It will be challenging to establish the value of such contributions. One way to do so would be to provide an estimate based on the going rate for services such as dog-walking in your neighbourhood.
Requesting an Order that the Pet Be Sold
This “lose-lose” option essentially involves one of the parties saying “well, if I can’t have our pet, then neither can you” and requesting a judge to order that a pet be sold with profits from the sale to be split between the parties. Some adjudicators have recognized the vindictive undertone of such a request. For instance, in Gardiner-Simpson, the court stated:
In matrimonial cases, parties often agree to sell jointly owned assets (whether realty or personalty) and split the proceeds. The problem would take on a Solomonic quality, where splitting the asset (be it a dog or a child) destroys the thing for both of them. Selling the dog to an outsider would only double the pain.
Similarly, in the previously mentioned Warnica decision, the judge recognized that:
Of course, any pet is somewhat different, in that it does not readily lend itself to physical division. A pet could be sold, with the proceeds to be divided in accordance with any determination as to the parties’ respective interests therein; however, that is something that few would want.
Courts would likely not view such a request kindly.
Including Provisions for your Pet in a Separation Agreement or Other Written Agreement
The most predictable way to determine what happens to a family pet following a separation or divorce is to come to a written agreement as between the parties. Separating or divorcing couples can avoid high costs, frustration, and uncertainty by simply agreeing to certain terms about their pet.
The parties can come to any agreement that they like, and include as much or as little detail as possible. For instance, the parties can make a schedule for the pet: each person can have the pet for alternating weeks, weekends, or months, or any other time that makes sense for both. Parties can also agree on how to share costs for the pet.
An experienced family lawyer can help parties make decisions and come to a mutually satisfactory decision with regards to a pet.
If you have questions about making decisions about pets following a divorce or separation please contact Jason P. Howie, online or at 519.973.1500.