"Who gets the Dog?" Pets during Divorce and Separation
Students in my Family Law course are typically a pretty chatty and engaged group, but one topic always triggers strong reactions in clients and students alike: "Who gets to keep the dog?" or "What about the cat?"
For many families, who takes on responsibility for the family pet after separation is a practical matter that resolves easily. For example:
If a party brought a pet into the relationship it is often assumed the pet will leave with them as well;
If the children primarily reside with one parent the family pet will often remain close to the children and be in their company;
There may be a clear consensus that a pet is more "bonded" to one person than the other; or
Logistical factors may guide the outcome, particularly if someone travels a lot for work, will not have a yard, or cannot otherwise take on responsibility for the pet.
In these situations the matter is resolved without much consideration of property law in Ontario, and the focus is on the practical resolution of the issue or ensuring the family pet is well cared for post-separation.
Pets and Property Law in Ontario
Difficult situations arise when spouses cannot agree on who will continue to care for the family pet after separation, and a legal analysis of the situation begins.
In family law disputes, property matters are within the jurisdiction of the province and Ontario's Family Law Act. Canadian courts have historically regarded family pets as property (the "traditional property approach") and ignored emotional bonds between individuals and their dogs or cats (the "relational approach").
In Part I of the Family Law Act, section 4(1) defines property as "any interest, present or future, vested or contingent, in real or personal property". This vague yet broad definition of property is read to include family pets in Ontario, despite pets not being expressly noted in the legislation.
Within the realm of property law, the above considerations of who the pet is more bonded with, or who has the time and ability to care for the pet, are legally irrelevant. Instead, a focus on who has legal ownership takes precedent. For example, a court may determine legal ownership based on evidence such as:
Who is the registered owner on paperwork from the dog or cat breeder (e.g. Canadian Kennel Club registration forms), veterinarian’s office, or adoption or rescue agency;
Who provided the funds to purchase the family pet, the source of these funds, or a receipt for purchase; or
Who is the registered owner for municipal dog or cat licenses.
If a dog was jointly purchased and owned by the parties, a property law assessment becomes even less satisfactory. A family pet is certainly "indivisible" and cannot simply be divided between the parties, but traditionally for jointly owned property like a car or artwork a court will usually order:
One co-owner to buy-out the other’s interest in the jointly held property; or that
The property be sold and the sale proceeds divided equally between the two owners.
Those with a beloved family pet will likely find a purely legal ownership assessment and its proposed “solutions” to be cold and improper. Similarly, these approaches are insensitive to the way in which a pet can transition from being “my pet” to being viewed as “our pet” during a relationship.
Family Pet Litigation - The Traditional Property Approach
When judges in Ontario are requested to address the family pet, there is a continued emphasis on property law and legal ownership concepts, as outlined in the following cases:
In King v. Mann (2020 CarswellOnt 178), a Shih Tzu named “Copper” was purchased by the Respondent, but after the parties separated the Applicant claimed that Copper was his dog and had been gifted to him. To resolve this dispute Justice Minnema focused on whether the ownership of Copper had changed during the relationship, and found that Copper remained the Respondent’s dog. Despite the Applicant choosing the dog’s name, spending time with the dog, spending money on the dog, or treating the dog generally as the family pet, these factors did not result in a change of legal ownership. In addition, the Respondent’s comments contradicted that he had been gifted the dog, as he admitted never wanted a dog beforehand, and he was not happy when woman first brought the dog home.
In Warnica v. Gering (2004 CarswellOnt 5605), a woman adopted a dog named “Tuxedo” from a local pound for $100.00. The dog always lived with the woman, except for a few months the parties separated and in which the dog went between households. Later, the man commenced an Application under the Family Law Rules seeking “shared [and] joint custody” of the dog, claiming that Tuxedo has been purchased as a gift for him. The woman denied gifting the dog to her former partner, and also denied ever living with him in a spousal relationship. When faced with this matter, Justice Timms noted that the matter was a waste of court's limited resources and determined that the woman’s possession of the dog undermined man's claim that dog was gift for him. Similarly, the judge noted that the man spending money on dog food and time caring for the dog were irrelevant in determining the legal owner of the dog.
Similar outcomes have also occurred in provinces outside of Ontario:
In Baker v. Harmina (2018 NLCA 15) the Newfoundland and Labrador Court of Appeal addressed "Mya", a Poodle and Bernese Mountain Dog cross. During the relationship the Plaintiff made arrangements with the breeder and he paid for Mya and most of her expenses; however, Mya spent significant time with the Defendant. After separating, the parties could not agree on who would keep Mya, and a small claims court proceeding was commenced. The small claims court judge found that Plaintiff bought dog alone and for himself, and while Defendant took care of dog she never acquired a property interest by gift or purchase. The Court of Appeal affirmed this narrow and traditional property approach to determining ownership of Mya. The Defendant’s request for joint ownership, or an unjust enrichment or constructive trust claim, was considered improper – and especially since the parties had obtained peace bonds against one another.
In Ireland v. Ireland (2010 SKQB 454) the Saskatchewan Court of Queen's Bench was asked to determine ownership of “Kadi”, a chocolate Labrador. In a one day trial on the issue, Justice Zarzeczny deemed the entire matter an unacceptable waste of resources of the court, counsel and the parties. Justice Zarzeczny refused any efforts to draw a parallel between the court's jurisdiction to settle parenting maters for children and property matters involving dogs., and determined the wife to me the owner in light of her initiative for acquiring Kadi and as she spent more time on Kadi's training and care.
Yet perhaps the most interesting aspect of these cases is the regular and continued focus on the family dog, rather than the family cat. I will avoid speculating whether dogs are better than cats in this article, or if dog-owners are simply more passionate and litigious pet owners...
Other Jurisdictions – The Relational Approach
For those finding the above outcomes insensitive, some hope and inspiration can be found in how other jurisdictions have recently amended their legislation and approach to the issue of the “family pet” in family law disputes:
In 2017, Alaska enacted ground-breaking legislation requiring judges in family law matters to consider the pet’s well-being, similar to a standard applied to children in parenting cases. The legislation was advanced by Max Gruenberg, a family lawyer who had once handled a custody case involving a team of sled-dogs;
In 2018, Illinois became the second state to enact legislation requiring judges to consider the “well-being” of a family pet in family law proceedings in Public Act 100-0422, which amended the Illinois Marriage and Dissolution of Marriage Act. The legislation now provides that “if the court finds that a companion animal of the parties is a marital asset, it shall allocate the sole or joint ownership of and responsibility for a companion animal of the parties. In issuing an order under this subsection, the court shall take into consideration the well-being of the companion animal.”
In 2019, California enacted AB 2274, which empowers courts to take into consideration “the care of the pet animal” in family law cases. California previously ascribed to the traditional property approach, but AB 2274 amended California’s Family Code to specifically differentiate “companion animals” from other martial property. Under the new law courts will even be allowed to create “shared custody” agreements for family pets.
In light of the shortfalls of the Family Law Act, it is not unheard of for Domestic Contracts in Ontario (e.g. marriage contracts or cohabitation agreements) to plan ahead and address pet ownership in the event of a separation. Such clauses can be particularly helpful if the funds for purchasing the family pet are from a joint bank account, or if both spouses contribute to the ongoing care and expenses of the animal.
In addition, some Separation Agreements will also set out the spouses' agreement in regards to the family pet to avoid any future misunderstanding or conflict.
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