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So, you’ve just separated from your partner and now face the daunting task of deciding who will get to keep the beloved family pet. In some situations, the matter is resolved without much consideration for family law in Ontario. Sometimes the party that brought a pet into the relationship can often leave with them as well. Other times the children primarily reside with one parent and the family pet will remain close to the children. Sharing custody of a dog or cat is also a possibility.

You may know that pets are protected in other areas of the law such as in landlord-tenant matters.  But “what about family law?” Unfortunately, pet custody is a bit more complicated. Ontario courts cannot make custody and access orders for pets.

What happens to pets after a separation or divorce?

In Ontario, pets are considered property. For example, see the case Coulthard v. Lawrence where the court held that pets are legally not considered family members, and accordingly child custody principles do not apply.

Is my pet really considered personal property?

Surprisingly, Ontario courts have traditionally treated pets like other pieces of personal property, such as furniture. Despite the close attachment between pet owners and their pets, family law courts will not permit the parties to apply child custody and access solutions to the question of their animals.

Justice R.W. Danyliuk of the Queen’s Bench for Saskatchewan is highly recognized for stating:

“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.”

Similarly, in the case of Savoie v. Dowell (2009), the court affirmed that the ‘best interest of the dog’ is not a legal concept. A dispute over custody of a dog is no different from a dispute over the ownership of a Harley-Davidson motorcycle.

In property disputes, if ownership cannot be figured out, generally the property is sold, and the proceeds from the sale are divided between the couple. The same thing would happen in the context of family law. If you and your ex-partner cannot come to an arrangement, and the court can’t determine the proper ownership of the pet, a family court judge may have no choice but to order the pet sold and the proceeds divided between the two of you.

What factors are considered in determining ownership as a part of custody of pets?

The court will consider several factors to determine which spouse has a right to the pet, such as:

  • Is the pet more bonded to one person over the other?
  • Was the pet brought into the relationship by one party or jointly brought in during the course of the relationship?
  • Who paid for the pet?
  • Who is the point of contact for any licensing or medical paperwork?
  • Who completes the day-to-day tasks associated with caring for the pet?
  • Who can best provide continued care?
  • Was the pet a gift from one party to the other?

In order to determine pet custody, consideration is also given to ownership and registration papers, veterinary records, and even pedigree registries.

What can you do to keep ownership of your pet?

Contrary to the position taken by the courts, our pets should not be considered property during a separation or divorce. Pets are inherently different from regular belongings in the house, and they should not be treated equally to the living room television set. They are living beings and often maintain strong emotional bonds with their humans.

You can protect your pet with a well-drafted Cohabitation Agreement. This agreement will outline what steps pet owners will take to make sure that  the pet’s best interests are protected in the event of a breakdown in the relationship – a pet custody clause, if you will.

To avoid having the court decide which person gets the dog or other pet in the event you have already begun the process of separation, it’s best to include provisions regarding any animals in your separation contract. A settlement jointly arrived at is always more durable and  long-lasting than a solution imposed on the parties by a judge.

Do you need a lawyer to help determine custody of pets or draw up an agreement?

The cost of a lawyer for pet custody can vary greatly depending on the circumstances of your case. If you have any questions regarding this article or would like assistance writing a Cohabitation Agreement, please reach out to the Siskinds family law team.

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