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Many families forge strong bonds with their pets, viewing them as important companions and benefitting from these relationships. But when partners separate, parties can begin feuding over who gets to keep the cherished pet. Canadian family law is not prepared to settle such disputes – there is no equivalent of parenting time for pets or scope to consider a pet’s best interests. So how do courts decide questions around the care of a pet?
Courts View Family Pets as Property
Although pets may be viewed as family members, under Ontario law, pets are considered to be items of personal property, similar to other chattels. As an indivisible piece of property, questions around who should keep and look after a pet focus on ownership, essentially determining who has a better property claim.
There is no legislation in place governing pet ownership, only laws which prohibit cruelty to animals. When people disagree over who should ultimately get to keep a pet when a relationship ends, the matter was addressed in Gardiner-Simpson v. Cross, where the issue was not finding which party had more affection for the pet or who would make a better owner; instead, the focus was on who owns the pet. Courts acknowledge that how pets are viewed in the eyes of the law does not align with many families’ expectations.
In Warnica v. Gering, Justice Timms noted 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.”
Courts List Factors to Help Determine Pet Ownership
In Savoie v. Dowell, the Court confirmed that the “best interest of the dog” is not an applicable argument. In Duboff v. Simpson, the unmarried parties disagreed about dog ownership. When the relationship ended, the applicant primarily cared for the dog but left the dog with the respondent on occasion when he could not care for her. The respondent did not see the dog for five months after the relationship breakdown. However, approximately one year after the separation, the respondent saw the applicant’s new partner walking the dog and she took the dog. The applicant commenced an action for the respondent to return the dog.
The judge noted that courts have the authority to determine ownership, but have no general discretion to redistribute property. Given that ownership is the key factor when it comes to pets, the courts will consider factors such as who purchased and paid for the maintenance of the pet. Further, the court will seek to find evidence of instances where ownership changed, if applicable. The judge accepted that, as with any piece of property, there can be issues over whether it was made as a gift or whether it might be held in trust for another party.
The Court referenced the decision in Coates v. Dickson, where the Court outlined ten critical factors to assist in determining ownership, including:
- Whether the animal was owned or possessed by one of the people before the relationship began;
- Any express or implied agreement as to ownership made either at the time the animal was acquired or after;
- The nature of the relationship between the people contesting ownership at the time the animal was first acquired;
- Who purchased and/or raised the animal;
- Who exercised care and control of the animal;
- Who bore the burden of the care and comfort of the animal;
- Who paid for the expenses related to the animal’s upkeep;
- Whether at any point the animal was gifted by the original owner to the other person;
- What happened to the animal after the relationship between the litigants changed; and
- Any other indicia of ownership or evidence of agreement relevant to who has or should have ownership of the animal.
The court in Duboff v. Simpson concluded the applicant was the lawful owner as he had always wanted a dog and was the one who searched for and chose the dog. Evidence showed that the respondent had made it clear to the applicant that the dog would be his responsibility. Adoption records listed the applicant as the owner, with the respondent only listed as someone who lived in his household. The applicant also paid most of the dog’s expenses which did not come from a joint account, as this might have supported an argument for joint ownership.
Despite the applicant communicating to the respondent that he “found a dog for [the respondent],” the Court did not see this as evidence of ownership but simply communications between a committed couple. It was a family dog, but that did not mean the dog was jointly owned. The non-titled party’s involvement with the dog depended on the relationship with the dog’s owner.
Will Courts Award the Joint Sharing of Pets?
Recognizing this dichotomy between the law’s focus on property rights and the social realities in how families treat and care for their pets, the Newfoundland Court of Appeal in Baker v. Harmina evaluated two different models for how courts could resolve the issue of pet ownership. In the initial decision from the small claims court, there was a focus on the chain of ownership of the pet, looking for discrete transactions where ownership changed hands, appearing to follow traditional legal doctrine.
On appeal, the Court took a broad look at the relationship between the parties and the dog for a more contextual approach that was “more sensitive to the way in which, over the course of a romantic and domestic partnership, ‘my’ dog can become ‘our’ dog, without any explicit moment of gift or purchase.” The Court found that this approach loosened the traditional approach, which held that a party claiming joint ownership should point to a moment where ownership changed hands, making it much easier to show that a pet was jointly owned.
While courts can modify legal doctrines, they must also consider the practical implications of any changes. The contextual approach, in this case, would expand the scope of joint pet ownership. Addressing whether pets could share or alternate homes, the Court found that such an order would create a scheduled opportunity for conflict for the rest of a pet’s life, and might result in costly and further emotional litigation.
Understanding the Treatment of Pets Within a Relationship Breakdown
Under a “pet as property” model, pet ownership remains the driving factor in settling who gets to care for the family pet. Courts recognize this approach is at odds with how most view their animal companions, however, the courts continue to follow the property-focused analysis, deciding that courts cannot treat pets similarly to children therefore joint sharing of pets is not appropriate.
Contact Howie Johnston Barristers & Solicitors in Windsor for Assistance with Property Divison
The family law lawyers at Johnson Miller Family Lawyers provide clients with trusted advice when dealing with high-asset divorces and complex property division matters, particularly when dealing with unique circumstances, including family pets. Our team understands the difficulties which can arise when negotiating terms for separation and divorce. Conveniently located in Windsor, our firm proudly serves clients in Essex County and the surrounding areas. To speak with a member of our family law team regarding concerns about asset division, reach out to us online or call us at 519-973-1500.
