Separation and divorce are never easy. Disputes regarding ownership (or care of) of the family pets may add additional emotion to an already difficult separation. In Ontario, the question of who retains possession of the family pets during a separation or divorce has been a topic of evolving legal discourse. While beloved family pets might feel like children, you will be barking up the wrong tree if you commence an Application for “custody” of or “parenting time” with a family pet. This post discusses the current legal landscape and factors considered by Ontario courts in determining ownership and/or possession of family pets, which were traditionally viewed as only property.
In 2005, the Ontario Court of Appeal dismissed the appeal from a decision dismissing a party’s application for joint custody of a pet dog named Tuxedo. In Warnica v. Gering,[1] the appellate Court affirmed the Ontario Court’s dismissal of the original Application under rule 16(12)(c)(iv) of the Family Law Rules, which allows the Family Court to dismiss or suspend a case because “the case is a waste of time, a nuisance or an abuse of the court’s process”.[2] This is not to suggest pets are a waste of time or a nuisance but rather, the basis for the dismissal was that pets were deemed to be property and not subject to an Application for custody or access (as they then were).
However, what happens to a family pet when parties separate remains a justiciable issue. The court has the power to order the following with respect to animals:
- Ownership of parties’ pets;
- Declaration of a gift;
- Compensation for harm to property interests;
- Order a return of a pet to the rightful owner; or
- Enforce the visitation schedule agreed to by the parties in a domestic contract.
In King v. Mann, 2020 ONSC 108, Justice Minnema was tasked with determining the ownership and residency of the parties’ dog, Copper. The applicant argued that Copper was a gift to him, but the respondent denied the gift, stating that Copper had always been her dog and indicated that she had no intentions of sharing him or letting him go. The Court noted that “there was no suggestion that either party ever neglected Copper, and both concede that the other took good care of and loves the dog.”[3] Justice Minnema held at paragraph 70:
Notwithstanding the universal agreement in the case law that dogs, being sentient beings, are a special, important, and unique category of personal property, for the purposes of practicality and expediency the law continues to hold that disputes over dogs are to be approached in the same manner as with any other personal property, namely the relevant question is ownership.[4]
The Court held that the respondent purchased the dog and, therefore, had a prima facie right as the sole owner. As such, the onus turned to the applicant to prove on a balance of probabilities that the ownership had changed. Factors that the court considered in its determination such as “spending time with the dog, spending money on the dog, and/or treating the dog generally as the family pet, would not affect a change in ownership.”[5] The applicant asserted that the dog was a gift and, therefore, had to prove the following elements of a gift:
- Intention of the donor to give;
- Delivery of the gift; and
- Acceptance of the gift by the donee.
The Court dismissed the applicant’s claim, stating, “in my view the applicant has not established anyone, and certainly not all, of the three elements to a gift on a balance of probabilities.”[6]
Over the past decade, the legal framework regarding disputes over possession of family pets has evolved. Ontario courts now appear to have more compassion towards this issue and have begun to recognize pets as more than mere property, straying away from the simplistic property division framework. A more pet-focused approach for determining the ownership of dogs has been seen in Coates v. Dickson, 2021 ONSC 992 and Duboff v. Simpson, 2021 ONSC 4970. In Coates v. Dickson, the parties acquired two dogs, Jazz and Jetta, during their three-year common-law relationship and subsequent marriage. The parties brought respective motions claiming ownership and seeking exclusive possession of both dogs. At paragraph 8, the Court took a broader approach to ownership than who purchased the dog, and held that courts should now consider the following when determining the ownership of a dog:
- Whether the dog was brought into the relationship by one of the parties;
- Any expressed or implied agreement as to ownership, made either at the time the dog was acquired or after;
- The nature of the relationship between the people contesting ownership at the time the dog was first acquired;
- Who purchased and/or raised 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 the expenses related to the dog’s upkeep;
- Whether at any point the dog was gifted by the original owner to the other person;
- What happened to the dog after the relationship between the litigants changed; and
- Any other indicia of ownership, or evidence of agreement relevant to who has or should have the ownership of the dog.[7]
When considering the above factors under the pet-focused approach, Justice Baltman held, “this broader approach is the correct one. Ownership of a dog is an investment that goes beyond the mere purchase price. It includes the care and maintenance that are an integral part of ‘owning’ the dog.”[8] Justice Baltman concluded that both dogs were jointly owned and equally cared for by the parties, as such, “Jazz should go to Ms. Dickson and Jetta to Mr. Coates.”[9]
Furthermore, in the case of Duboff v. Simpson, 2021 ONSC 4970, the parties were in a common-law relationship for four years between 2015 and 2019.[10] The Applicant, Michael Duboff, brought an application for declaration of ownership of their beloved boxer breed named Layla. Immediately after their separation, Layla stayed with Michael full-time except for exigent circumstances, where Michael would leave Layla in Natalie’s care when he was unable to look after her. The relationship between the parties soured after Michael commenced a new relationship in the beginning of 2020. This is where things get a bit strange. Approximately one year after their separation and five months since Natalie had last seen Layla, Natalie was in a car with her co-worker and saw Layla being walked by Michael’s new girlfriend. Natalie pulled over and ran across the street to strike up a conversation with her. She then took Layla’s leash, ran across the street, and drove away with Layla. Interestingly, in response to the application, Natalie sought a declaration that she is the sole owner or alternatively constructive trust over Layla’s ownership in her favour and, if appropriate, a shared property residential schedule for Layla. Justice Papageorgiou found that Michael was the lawful owner of Layla under both the traditional approach and the more recently adopted, pet-focused approach. The court noted the following factors: Michael submitted all adoption documentation, trained Layla, and paid for most expenses associated with Layla. As such, Justice Papageorgiou ordered Natalie Simpson to return Layla to Michael Duboff within seven days.
Strategies to Safeguard Pet Ownership: Domestic Contracts
Cohabitation agreements and separation agreements emerge as valuable tools to pre-emptively prevent potential litigation over their beloved pets. Cohabitation agreements and separation agreements are both considered domestic contracts under the Family Law Act. As such, cohabitation agreements and separation agreements must be made in writing, signed by the parties and witnessed to be valid and enforceable.[11] For more information on common law separation and the division of property, read our earlier blog:
You can mitigate potential conflicts, set out expectations, and protect your possessory interests to your pet with a well-drafted domestic contract. Parties can include specific provisions outlining who will retain ownership of the family dog in the event of separation. This can consider factors such as primary caregiver status, emotional attachments, expenses, and living arrangements. We have drafted agreements regarding family pets to include these provisions, as well as others, addressing the financial aspects of pet care, including veterinary bills, food costs, and other expenses related to the dog’s well-being and those that provide the family pets are exchanged with the children to provide some continuity for them. By mutually deciding on a pet’s living arrangements, visitation schedules, and financial responsibilities, couples can avoid unnecessary conflicts and potential legal disputes.
At Northern Law LLP, we appreciate that pets are more than mere property to be divided. We understand the emotional attachments individuals have to their pets and the importance of resolving pet-related disputes with sensitivity and clarity. Contact us today at (705) 222-0111 or info@northernlaw.ca.
[1] Warnica v Gering, [2005] O.J. No. 3655.
[2] Family Law Rules, O Reg 114/99, s 16(12)(c)(iv).
[3] King v Mann, 2020 ONSC 108 at 69.
[4] King v Mann, 2020 ONSC 108 at 70.
[5] King v Mann, 2020 ONSC 108 at 71.
[6] King v Mann, 2020 ONSC 108 at 83.
[7] Coates v Dickson, 2021 ONSC 992 at 8.
[8] Coates v Dickson, 2021 ONSC 992 at 17.
[9] Coates v Dickson, 2021 ONSC 992 at 20.
[10] Duboff v Simpson, 2021 ONSC 4970
[11] Family Law Act, R.S.O. 1990, c. F.3, s. 55(1).