We all love our pets, and in many households, pets are treated like family. Therefore, it is not surprising that an increasingly prevalent question I get in my practice is how to deal with family pets when people are separating.
Despite our feelings about our pets, Ontario Family Law traditionally takes a very stark approach and treats pets solely as property to be divided based on ownership. The courts have stated that it is not a good use of resources to adjudicate pet issues and generally will not deign to make orders relating to pet “access” or “custody”. Instead, courts will decide based on who has a stronger ownership claim. An example of this was reflected in the case of Duboff v. Simpson, 2021 ONSC 4970, wherein the honourable Justice Papageorgiou stated, “[pets] are personal property much like other chattels, even when purchased during the course of a relationship. […] The relevant question is ownership, not who wants the dog more or who has more love and affection for the dog, or even who would be the best owner”.
The caselaw shows that the courts have historically taken the “traditional” approach to questions of ownership, which examines ownership through the lens of financial contribution.
Recently, however, courts have started taking a more holistic approach to determining ownership. In this “expanded” approach, the courts consider not only purchase and registration but broader factors. The case of Coates v. Dickson, 2021 ONSC 992, clarified that some factors to be examined might include the following:
- Any express or implied agreement as to ownership, made either at the time the animal was acquired or after;
- 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; and
- Who paid for the expenses related to the animal’s upkeep.
This expanded approach signals a shift in judicial understanding that reflects our modern and complex feelings about our animals. Ultimately, pets are still a property law issue in the eyes of the law and remedies that the courts can offer are limited. Therefore, alternative dispute resolution methods like mediation or negotiation may offer more creative and flexible solutions for pet-related disputes than what the courts will order.
If pet and property division are an issue in your family law matter, the experienced Family Law Team at Boardwalk Law LLP is happy to help. Please contact Alexander Cannon, Associate Lawyer at Boardwalk Law, at [email protected] / 905.288.7109 to book a consultation today.
