When a couple separates or divorces in Ontario, one of the most emotionally challenging issues can be deciding who gets to keep the family dog. Likewise, this question is equally applicable to any other animal. Understanding pet custody law in Ontario can help navigate this difficult process.
For most of us, pets are not just animals but cherished members of the family. We often see clients who treat their pets as children. Logically, they come with questions related to figuring out who gets to keep the animal. Alternatively, some of our clients ask questions as to what does the law say about “custody” of their animals.
Unfortunately, by way of a condensed summary, neither Ontario nor Canadian federal legislations have any special provisions addressing “custody” of the animals. In short, any pets owned by the parties are treated as property. It may be a tough pill to swallow when someone equates your forks and spoons with a beloved member of the family. However, this is the reality under the local legislation.
This article dives a little bit deeper into the intricacies of the pets custody law in Ontario. We hope that after having read this article, you will have a better understanding of what you can do to keep your pet. In other words, this article explores how Ontario courts approach pet custody, the factors they consider, and relevant case law to help you understand your rights.
How Ontario Family Courts View Pets in Separation Cases
In Ontario, the law treats pets as personal property under the Family Law Act. This means that, unlike child custody cases, there are no specific laws governing pet custody or visitation rights. Instead, courts focus on determining ownership, similar to how they would divide other assets like furniture or vehicles.
When deciding who keeps the dog, Ontario courts may consider several factors. We compiled the factors that courts refer to from multiple cases. Now it seems that these factors have become a fairly standard assessment in more recent cases. Below are the main factors:
- Ownership: Who purchased or adopted the dog? If one party can prove they acquired the pet before the relationship began, they may have a stronger claim.
- Relationship Between The Parties: the nature of the relationship between the parties contesting the ownership at the time the animal was first acquired. For example, if the parties did not live together and one party purchased the animal, it will make that party’s claim stronger.
- Gift: whether at any point the animal was gifted by one party to the other.
- Financial Responsibility: Who paid for the dog’s food, veterinary care, and other expenses? Who exercised care and control of the animal? Documentation of these payments can strengthen a claim.
- Express or Implied Agreement Between the Parties Regarding Ownership of the Animal: It could have been made at the time the animal was acquired or after.
- Living Situation: Who has the more suitable living environment for the dog? Factors like space, access to outdoor areas, and work schedules may be considered.
- Other Indicia of Ownership: Any other evidence of agreement or indicia relevant to who has or have the ownership of the dog.
Case Law on Pet Custody in Ontario
These cases were decided in Small Claims Courts in provinces outside of Ontario:
- Gardiner-Simpson v. Cross, 2008 NSSM 78 (CanLII);
- Hawes v. Redmond, 2013 NSSM 57;
- Millet v. Murphy, [2011] NSJ No. 182.
The following principles can be extrapolated from these Small Claims Courts cases:
- Animals (dogs included) are considered in law to be personal property;
- Disputes between people claiming the right to possess an animal are determined on the basis of ownership (or agreements as to ownership), not on the basis of the best interests of the animal;
- Ownership of-and hence the right to possess-an animal is a question of law determined on the facts.
- When ownership is contested, the factors identified in this article above are applicable.
While pets are generally treated as property, some Ontario cases have highlighted the unique nature of pet ownership and the emotional bonds involved. Below are a few notable cases that illustrate how courts have approached pet custody disputes:
The Case of Franco v. Franco, 2024 ONSC 6436 (CanLII), <https://canlii.ca/t/k813b>
The court applied the expanded approach to determine ownership, considering the following factors:
- Purchase and Documentation:
- The wife provided a 2014 purchase agreement from the breeder in Brazil, listing her as Meg’s owner.
- Meg’s original microchip registration in Brazil (2014) also listed the wife as the owner.
- The wife submitted veterinary records from Brazil and Canada, as well as a declaration from the breeder, confirming she was Meg’s owner.
- Primary Caregiver:
- The wife claimed she was Meg’s primary caregiver, arranging grooming, veterinary appointments, and daily care.
- The husband acknowledged the wife’s involvement but argued he also cared for Meg and paid for most expenses.
- Financial Responsibility:
- The husband paid for most of Meg’s expenses, but the court noted this was consistent with the wife’s financial dependence on him during the relationship.
- Post-Separation Conduct:
- The parties initially shared Meg after separation, but the husband unilaterally withheld the dog in November 2023.
- The husband registered Meg’s microchip in Canada under his name after the separation, which the court viewed as an attempt to bolster his claim rather than evidence of ownership.
- Third-Party Evidence:
- The wife’s sister and the breeder supported her claim that Meg was a gift to her.
- The groomer in Canada also confirmed the wife was Meg’s primary caregiver.
Family Court’s Decision on Pet Custody:
The court found that the wife is the lawful owner of Meg based on the following:
- The 2014 purchase agreement and microchip registration listed the wife as Meg’s owner.
- The wife acted as Meg’s primary caregiver throughout the relationship.
- The husband’s post-separation actions, such as registering Meg’s microchip in Canada, were not persuasive evidence of ownership.
The court also declined to order a shared custody arrangement, emphasizing that pets are property and shared custody orders are impractical and not supported by Ontario law.
What Can You Do to Protect Your Rights?
If you are facing a separation and want to ensure you can keep your dog, consider the following steps:
- Document Ownership: Keep records of who purchased or adopted the dog, as well as any expenses related to the pet’s care.
- Prove Primary Caregiving: Provide evidence that you were the primary caregiver, such as vet records, receipts for food and supplies, and witness statements.
- Negotiate with Your Ex-Partner: If possible, try to reach an agreement outside of court. This can save time, money, and emotional stress.
- Consider a Pet Agreement: Some couples create a written agreement outlining who will keep the pet in the event of a separation. While not legally binding, it can serve as evidence of intent.
Conclusion
In Ontario, pets are treated as property during a separation, and courts focus on determining ownership rather than applying custody or visitation rights. The emotional bond between a person and their dog can make these disputes particularly challenging. By understanding the factors courts consider and reviewing relevant case law, you can better navigate the process and protect your rights.
As an alternative to spending thousands of dollars on determination of your pet ownership, you can attempt to explore a sharing schedule of your pet. This approach, however, is more applicable to dogs disputes. We had clients who successfully negotiated visitation rights thus avoiding high legal expenses on litigation.
If you’re facing a pet custody dispute, consulting a family divorce lawyer with experience in these matters can provide valuable guidance and support. Remember, while the law may view your dog as property, the love and companionship they provide are priceless.
Contact Progressive Legal Solutions as we have the necessary experience with this type of matters and will happily guide you through this process.