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Custody of the Family Pet

By February 15, 2019 April 22nd, 2019 No Comments

How are Family Pets Regarded by the Courts?

Although many people may consider the family dog, cat, or beloved iguana to be an important member of the family, pets are not family members in the eyes of Canadian courts. Instead, they are regarded as property belonging to one or both of the parties in a marriage or cohabiting relationship. Therefore, either party to the relationship cannot legally request or be granted “custody of” or “access to” a pet.

There has, however, been some acknowledgment by courts that pets are nominally different from jointly owned assets that can be sold, with the profits being divided between parties. When an asset is jointly owned, both parties have a right to half of the worth of that asset. Obviously, selling the family pet and splitting the proceeds is rarely a good solution for anyone. While the court’s main consideration must go to determining ownership of the pet, the animal’s wellbeing and the emotional toll on all affected parties can be examined as well.

How Do the Courts Decide Who Gets Ownership of the Family Pet?

In determining who gets ownership of a pet among members of a (marital or otherwise) relationship, the courts will look at factors such as:

  • Who paid for the pet initially? Is there tangible proof of the payment, like a receipt?
  • Who paid for the veterinary care and daily needs of the pet such as food and grooming?
  • Whose name is listed as the owner on any licensing or medical paperwork?
  • Who actually completed the day-to-day tasks associated with caring for the pet such as feeding, grooming and exercise?

Although ownership is the overall determining factor in these cases, the courts may consider:

  • Who can best provide the continued care of the pet? This can depend on the parties’ housing situations, work schedules, and physical ability to complete tasks.
  • With whom live any children who may experience trauma as a result of being separated from the pet?

When a married couple is separating, a family pet will be included as part of the matrimonial property owned jointly by both spouses. Formerly cohabiting parties may each attempt to prove ownership of the pet through documentation and history of the pet’s care. The waters become muddier when two parties who did not marry or cohabitate wish to resolve the issue of pet ownership.

If the parties to a pet-ownership dispute have previously worked out and participated in an arrangement through which they were able to divide housing and care of the animal between them, the court may decide to hold them to that arrangement. Similarly, if the pet has lived with one of the parties for a significant length of time, the pet may be deemed “surrendered” to that party for the purposes of the separation.

In some cases, despite one spouse successfully giving evidence of ownership of a pet, the court may decide to award ownership to the other spouse based on the needs of a child living with that spouse. At times, the court has found that the potential upset to a child already traumatized by the separation of his or her parents was a significant factor in awarding ownership of the pet to the spouse with whom the child resided.

There may exist cases in which neither party to the dispute is in a better position than the other to care for the family pet. In these cases, as a Nova Scotia Small Claims Court judge aptly put it in his 2008 decision:

“As such, slightly distasteful as it may be in the case of two loving and

devoted pet owners, I must consider which one has the better property

claim.”

Figuring out ownership of a pet can be complicated by circumstances such as claims that the pet was a gift to one of the parties, the absence of cohabitation between the parties, the temporary surrender of the pet to one of the parties, and many other scenarios. Unfortunately, Ontario case law surrounding this issue is relatively scarce, and results will vary based on the specific circumstances of each separation.

How Does One Prevent Protracted Legal Disputes Over the Family Pet?

Courts are hesitant to devote more judicial resources to an issue than it merits, and are thus hesitant to allow parties’ to expend too much of their respective resources on determining pet ownership. That being said, being unable to see one’s animal companion can be a source of real upset and is worth contemplation.

Therefore, it is always wise to consider the future of the pet when drafting and negotiating any type of separation agreement with a spouse. This agreement could assign ownership of the pet as well as contain terms regarding the pet’s care, living environment, and routine or emergency medical decisions. It is certainly possible to work out an arrangement where both parties are able to spend time with their pet and contribute to the quality of the pet’s life.

Ultimately, the court may not accept these types of terms, as some courts may simply default to the standard division of property mechanism set out in the separation agreement, but it is always worth suggesting them to your lawyer and seeing if they can be worked into the agreement.

How to Find Help

Get help from divorce lawyers who are trained to help you navigate through the whirlwind of paperwork and emotions that come with deciding how to care for your pet in the future. Our lawyers can give you independent legal advice on separation agreements before you sign them, and explain how they will affect pet ownership.

Tailor Law Professional Corporation offers a free thirty-minute consultation during which you can speak to a lawyer about your situation. Our family law lawyers are happy to sit down with you and discuss your legal issue. We encourage you to meet with one of us, and we’ll see if we can help. We can talk through your situation, outline your options, and figure out your next steps and the best way to move forward. Give us a call at 905-366-0202 or book online.

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