In the unfortunate event of a relationship breakdown, most people focus their attention on the children and who will assume responsibility for them. But what about the family pet(s)? In this day and age, pets are often treated as family and they too can be caught in the middle of a relationship breakdown. While it may seem trivial, pet custody is often a huge issue for separating or divorcing parties and has become an emerging trend in separation proceedings. So how is pet ownership determined?

With nearly 58% of Canadian households owning at least one dog or cat, most of these households consider their pet(s) to be like family members, often loving them similarly to children. Unfortunately, the legal system does not afford the same sentiments to pets in family law proceedings. In the family law context, Ontario courts cannot make custody or access orders for pets, nor can they order visitation rights or financial support like they can with children.

Traditionally, the courts have classified/treated pets as property, much like a car or book collection that can be disposed of, and unlike children, courts will not consider the best interests of a pet. Courts can however, determine ownership of a pet and which party has a right to it.

Who gets to keep the pet was typically determined by a straightforward property approach—the purchaser is the owner. In fact, there have been cases where courts took the position that the issue of the ownership of a pet is not worth the courts time and resources. In one case, the court dismissed a pet custody issue and stated at the beginning of the decision:

"But after all is said and done, a dog is a dog. At law it is property, a domesticated animal that is owned. At law it enjoys no familial rights." [para 2]

In recent times however, courts have engaged in a more thoughtful analysis when determining ownership, keeping in mind the strong emotional relationships people have with their pets and the fact that ownership of a pet is more complicated than ownership of a piece of furniture.

Some factors that a court may consider when determining ownership of a pet can include:

  • Whether the dog was owned by one of the parties before their relationship began;
  • The nature of the relationship between the parties when the dog was acquired;
  • Any express or implied agreement about ownership, made either when the dog was acquired or after;
  • Whether at any point the dog was gifted by one party to the other;
  • Who purchased the dog;
  • Who exercised care and control of the dog;
  • Who bore the burden of the care and comfort of the dog;
  • Who paid for expenses related to the dog's upkeep; and,
  • What happened to the dog after the party's relationship changed. [52]

The trend seems to be that courts have begun to recognize the importance and sentimental value that pets have on their owners and look to the relationships at hand between the parties and the pet(s). Just because one party purchased the pet does not necessarily mean that they get to own the dog by default upon separation. The above factors and the emotional bond between the pet and the other party is a valid consideration. It goes without saying that societal trends and attitudes can be powerful in capturing the attention of the courts to matters that are important to the average person. However, this unfortunately does not change the fact that pets are treated as property in the family law context.

In the event that the parties cannot agree, or the court cannot determine the appropriate ownership of the pet(s), the court may order that the pet(s) be sold and that the proceeds from the sale be divided between the parties.

To avoid court interference and putting your pet(s) in the middle of an ownership dispute, the best course of action is to come to an agreement and put it in your cohabitation agreement/marriage contract/separation agreement to ensure that your pet(s) is well taken care of and that their interests are protected.

With the rise of pets becoming a staple in most households, perhaps the time has come to ditch the traditional property analysis and explore pet ownership laws—laws that reflect the modern-day sentiments of owning a pet and how there tends to be a social attitude towards pets as being more than just property.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.