Pets and Divorce. There are 7 million cats in households across Canada and 6.4 million dogs. There are approximately 75,000 divorces in Canada each year. Courts in Canada have taken three different paths with respect to resolving disputes about dogs/and other pets. The first is that pets are not a justiciable issue and the courts will decline to be involved in resolving disputes over pets. The second approach has been to treat family pets as akin to children and resolve the disputes based on the best interests of the pet. The third, and respectfully the only correct way to deal with family pets, is to accept that family pets are property, and the ownership and possession thereof must be determined in accordance with the law of property.
In a quintessential judgment about the issue of family pets, and in particular, dogs, Justice R.W. Danyliuk of the Court of Queen’s Bench for Saskatchewan in the Saskatoon Family Division settled the law about dogs: “Dogs are wonderful creatures. They are often highly intelligent, sensitive and active, and are our constant and faithful companions. Many dogs are treated as members of the family with whom they live. But after all, is said and done, a dog is a dog. By law, it is property, a domesticated animal that is owned. At law, it enjoys no familial rights.“
In this case, the husband brought an application seeking interim possession of two dogs owned by the parties or one of them under the Family Property Act – essentially seeking possession of the family property. The wife’s position looked like an interim custody application as she sought interim possession of the two dogs with decision-making powers but allowed the husband reasonable access. In attempting to settle the conflicts and the law about how to treat dogs as children or property, Justice Danyliuk says this: “I say without reservation that the prospect of treating pets as children would be treated holds absolutely no attraction for me. I say this cognizant that many dog owners, perhaps most of them, choose to treat the family dog not as property but as family. Certainly, that is what these parties did. But that choice does not alter the law that pets are property. My present task is not to act with emotion or to validate the personal perspective of pet owners within the legal context. Rather, it is to interpret and then apply the law. And for legal purposes, there can be no doubt: Dogs are property.” Similarly, in the case of Savoie v. Dowell, 2009, the court affirmed that the ‘best interest of the dog’ is not a concept any more relevant to the law than would be the best interest of the motorcycle in a dispute over a Harley-Davidson.
In Ontario, no one has the right to “custody” of a pet upon separation or divorce. Instead, as discussed above, by law all pets are considered property or possessions – like any household furniture. This means that a post-split right to own and possess the family pets are subject to the same laws that govern the division of regular matrimonial assets. This was confirmed by the courts in Coulthard v. Lawrence where the court enunciated that pets are not considered family members, and child custody principles simply do not apply to these kinds of disputes. Instead, the outcome merely hinged on which of the former spouses had legal ownership, and the related right to possess the dogs.
The leading authority in this realm is Warnica v. Gering. In this case, Mr. Warnica brought a court application and sought joint “custody” of the couple’s dog Tuxedo, claiming that his partner, Ms. Gering, had got the dog as a gift for him about eight years ago for $100 from a local pound. He also sought temporary possession (which, the author of this article presumes, was equivalent to parenting time) on a week-on/week-off basis. Ms. Gering asked for sole custody of Tuxedo. She denied that Tuxedo was a gift to Mr. Warnica, but said that the dog was purchased as a companion for herself as she lived alone.
In this decision, although acknowledging that pets have sentimental values for many people, Justice Timms wrote that he “does not believe that any court should be in the business of making custody orders for pets, disguised or otherwise’ because pets are not children. He wrote that an issue ‘should not occupy more court resources than it merits,’ and reprimanded the applicant for spending an unreasonable amount of money on this issue.
This decision was affirmed in the Ontario Court of Appeal, where the appellate judges found that the lower court did not err in dismissing the applicant’s case because it was a waste of the court’s time. But more importantly, they confirmed that “the claim would likely fail both on jurisdiction and the merits,” indicating that custody of a pet is not a viable concept in the family courts and they do not have jurisdiction other than the decision of who is the rightful owner of the animal.
To add to this, the court in Henderson v. Henderson similarly indicated that in a justice system that is incredibly busy, where delay has virtually become systemic, where there are cases involving child welfare and family matters that wait months for adjudication, courts are usually reluctant to entertain family matters involving pets. It must be kept in perspective and measured against other matters, many of which inarguably are of more importance. … To consume scarce judicial resources with this matter is wasteful.
To avoid having the court decide which person gets the dog or other pet, it’s best to include provisions regarding any animals in your separation contract. By discussing your animals with your spouse, you’re much more likely to reach a mutually satisfactory agreement that allows humans and animals alike to live peacefully.
Ontario Courts do not have jurisdiction to make custody and access orders for pets. In rare cases, courts have made decisions concerning pets based on what is in a child’s best interest. For example, has the child bonded with the pet, and is it in the child’s best interest for the pet to continue residing with his or her primary caregiver?
Ontario Courts do not have jurisdiction to make custody and access orders (or decision-making responsibility and parenting time orders as they are now called) for pets. In rare cases, courts have made decisions concerning pets based on what is in a child’s best interest. For example, has the child bonded with the pet, and is it in the child’s best interest for the pet to continue residing with his or her primary caregiver?
In lieu of requesting a judge to make a “custody decision” about a pet, there are a number of options available to separating or divorcing couples who want to make a decision about their animals: 1) Requesting a declaration about the ownership of a pet; 2) Requesting to be compensated for time and money spent on a pet; 3) Requesting an order that a pet be sold; 4) Including provisions for your pet in a separation agreement or other written document.
In determining who gets the ownership of a pet between the two spouses, the courts will look at factors such as:
The courts in determining ownership will also consider- Registration and license records, veterinary records, microchip records, and pedigree registries.
Until Ontario’s family law treatment of pets is updated to conform with our modern understanding of pets as family members, you can protect your furry loved ones with a creatively drafted Cohabitation Agreement. A properly drafted Cohabitation Agreement can work within the ‘property approach’ to pet owners to make sure that your pet’s best interests are protected in the event that your relationship breaks down. Your Cohabitation Agreement will specifically address the issue of pet ownership and can further be used as a basis to bring a Motion or an Application if your pet is withheld against your wishes.
While going through a separation, it can be hard enough to determine what to do with one pet that both you and your spouse love. However, when it comes to divorce and multiple pets, these decisions can be even harder.
If your pets have lived in the same home as each other for many years, it’s very likely that they’ve formed a close bond. If you take the one dog and your ex takes the other when you separate, you would not only be separating your pet from their other owner, but you would be separating them from their other furry friend.
Contrary to the position taken by the courts, pets should not be considered property during a divorce. They can experience grief, anxiety, and confusion, on top of the other stressful changes that may be occurring. Divorce often leads to a change in routine, changes in home layout or moving to a new home entirely, and the “loss” of a pet parent or children. Separating multiple pets who are used to each other’s company can exacerbate this stress and make the transitions even harder to manage.
Alternatives to splitting up pets in Divorce:
In the event that you and your spouse separate, pets usually get caught in the crossfire. Legally speaking, a pet is often viewed as an asset or property. Many times, spouses believe that they will retain ownership of the dog or cat, but that’s not necessarily how it will work without an agreement.
For instance, if you already have a pet prior to entering into a relationship, it seems safe to say that you’ll retain ownership. But if you don’t have proof that you purchased or licensed the animal, it might not be so clear-cut. In fact, if your ex-spouse has records indicating that they paid for veterinary visits and other expenses, they may have a clearer case of ownership.
Therefore, it is best to draw a pet-nuptial agreement, which is essentially a prenuptial agreement to primarily determine potential pet-related issues. Prenup provisions for pets can detail where each pet will live or how custody will be shared. They can address a variety of issues such as who will make medical decisions and who will pay for veterinary care and insurance, as well as everyday care.
The cost of a lawyer for pet custody can vary greatly depending on the specific circumstances in your divorce case. Contact Nussbaum Law and speak to one of our experienced lawyers who will advise you on how to proceed and how much it will cost.