Can we share custody of our cat? Who will pay for the dog’s vet bills? Can our pets be included in our separation agreement?

These questions have become increasingly more prominent for parties grappling with how to care for their pets after separation.

Families grow extremely attached to their pets with many regarding and treating them as if they were their children. The emotional support from owning and caring for a pet can be important for parties going through a difficult separation. Since the onset of the COVID-19 pandemic, adoption rates of pets increased and so did our attachment to them thanks to increased time spent at home. It follows then that the ownership and care of pets has become a legitimate and contentious issue for many couples deciding to separate.

Many may consider pets as integral parts of their families but the law is still clear: pets are defined and treated as property in Canada. When parties turn to the legal system to settle disputes about their pets, the courts are tasked with the determination of ownership of the animals.  

How the Courts Determine Ownership

Two major approaches have emerged within the Canadian Courts when determining ownership. The traditional approach views ownership through a narrow lens — Who paid for the pet?

The second approach takes a broader holistic view of pets, determining ownership through the consideration of a non-exhaustive list of factors including:

  • Whether one party brought the animal into the relationship
  • Whether there was any agreement as to ownership
  • The nature of the relationship between the pets and the parties
  • Who purchased or was gifted the animal and who is the registered owner
  • Who physically cared for the pet, including grooming, walks, food, comfort, etc.
  • Who paid for the vet bills, food, toys, etc.
  • The care of the animal following separation

In recent years, there has been a trend favouring the second approach. While courts are hesitant to stray from the definition of pets as personal property, many judges have acknowledged pets are a special kind of property. The determination of ownership is far more nuanced and complex than simply deciding who owns an inanimate piece of furniture. Courts have even considered factors such as the emotional attachment with the family members or needs of the children.

In one very recent Ontario case, the Superior Court had to decide ownership of the parties’ two Labrador Retrievers. The Court recognized that the parties both owned the dogs based on a consideration of relevant factors but had been unable to agree on how to share or jointly maintain the dogs. Unable to find another suitable solution, the Court regrettably opted for a compromise wherein each party would take one dog.

Interestingly, the Court regarded the therapeutic support offered by the dogs to both parties suffering emotional stress of their high-conflict separation as a particularly relevant factor in determining ownership. The Courts also considered the importance of the protective qualities of one of the dogs when deciding which dog would go with which spouse.

What Can Pet Owners Do?

Notwithstanding the law’s view of animals as property, families often still want arrangements in place protecting their relationships with their pets if they choose to separate.

Parties are free to decide the ownership and care of their pets within a written agreement. This includes cohabitation agreements, marriage contracts (often referred to as ‘pre-nups’), and separation agreements. These agreements can incorporate terms such as how expenses will be shared, how medical decisions will be made, and where the pet will live. Parties can agree to jointly make decisions for their pets and can have the pets follow certain residence schedules tailored to what works best for their family.  

If a dispute arises, parties must decide whether it is worth expending the cost and time involved with going to court. Court resources are limited, with backlogs only further rising due to delays caused by COVID-19.

It is important to remember when courts are tasked with decisions resembling a custody and access dispute (now referred to as decision-making and parenting time under federal and Ontario legislation) regarding pets, they will make their decision based on the principles of property law. Courts may consider a previous agreement but there is no guarantee every court will consider each nuanced and specific factor relevant to the determination of ownership of pets.

At Mills & Mills LLP, our experienced family lawyers can help you determine the best approach when it comes to your pets and all other family law issues. To learn more about how we may assist you, contact us online or by telephone at (416) 863-0125.

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