What happens to pets during a separation or divorce? Understanding your rights in Ontario
With separation and divorce, comes
the task of dividing household contents, belongings and shared property,
sometimes with the assistance of lawyers. This includes our beloved
pets.
In Ontario, the court
views pets as personal property and will look to registered ownership.
Despite the special bond we share with our pets, this often comes as a
surprise to separating spouses.
“Although
pets are often viewed by people as members of their family, in law they
are personal property much like other chattels, even when purchased
during the course of a relationship. In that regard, they are an
indivisible piece of property. 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.”
— Justice Papgeorgiou
Recently
in Ontario, a motion was made for possession of the family dogs, the
following factors were considered (note this list is not exhaustive):
- Whether the animal was owned or possessed by one of the people before their relationship began;
- Any express or implied agreement as to ownership, made either at the time the animal was acquired or after;
- The nature of the relationship between the people contesting ownership at the time the animal was first acquired;
- 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;
- Who paid for the expenses related to the animal’s upkeep;
- Whether at any point the animal was gifted by the original owner to the other person;
- What happened to the animal after the relationship between the litigants changed; and
- Any other indicia of ownership, or evidence of agreements, relevant to who has or should have ownership of the animal.
In
contrast to the above approach, British Columbia has made changes to
their law, also called the Family Law Act, regarding the division of
pets, or what they are now referred to: companion animals. These changes
came into effect on January 15, 2024.
Factors to be considered when determining the placement of a companion animal include the following:
- each person’s ability and willingness to care for the animal;
- the relationship a child has with the animal; and
- if there are any risks of family violence or threats of cruelty to an animal.
If the separating
spouses are unable to reach an agreement as to who keeps the pet,
subject to the considerations above, Courts may make an order that one
spouse or “party” have possession of that animal. Courts will also have
the power to uphold previous agreements with respect to possession of
the pet but will not have the power to make an order for shared
possession.
another viewpoint, a Judge recognized and acknowledged the importance of
the emotional bonds families share with their pets, even after marriage
breakdown. While the Judge was clear that they would not encourage
parties to readily litigate these particular issues, the role that
companion animals play in present day society has perhaps evolved.
As
our society continues to recognize the deep emotional bonds we share
with our pets, the laws surrounding their care and guardianship are
evolving to reflect this change. Navigating this issue in a separation
or divorce can be challenging and emotionally taxing. If you find
yourself in this situation, remember that you are not alone. Our team of
experienced family lawyers is here to provide you with compassionate,
professional advice, tailored to your unique circumstances and the
well-being of your cherished companion animals. Please feel free to reach out to myself
or another team member should you need guidance. We understand the
importance of these furry family members and are committed to helping
you find the best possible solution during these challenging times.
In the case of Duboff v Simpson
In the case of Coates v Dickson, Justice Baltman
In the case of Baker v Baker for the Newfoundland & Labrador Court of Appeal, Honourable Justice Hoegg
This article was originally published in The Hamilton Spectator.
