Clients often inquire about what happens to pets after a couple separates. This often becomes a point of serious contention and dispute between the former partners, as many people are emotionally attached to their pets, view them as an important part of their lives, and are unwilling to fully part with them or split their time with them. However, while Courts are often asked to view pets and children equally in divorce proceedings, pets are considered property for family law purposes, and are treated no differently than other personal possessions such as jewellery or vehicles, to be divided between the parties. This essentially precludes Judges from making “custody” decisions with respect to pets.

Recent Family Law Decisions About Pets

In a recent decision about pets and divorce (from Saskatchewan) Justice Danyliuk dismissed a separating couple’s request for a “custody decision” about their three dogs, telling the parties that their request was a “wasteful” use of “scarce judicial resources”, and that such applications should not be made to family court. Following their separation, the parties had not been able to agree on what would happen to their dogs. The husband wanted exclusive possession of two of the dogs, whereas the wife wanted an arrangement that was essentially equivalent to a custody and access plan. She had requested that all three dogs reside primarily with her, with the husband being able to exercise “reasonable access” to the pets, as long as he provided her with advanced notice, and as long as his access visits lasted no longer than 1.5 hours. She also requested that she be the sole decision maker with respect to the day-to-day needs of the dogs, including their health, nutrition, and general well-being. Each party argued that they had been the better “dog parent” and had disproportionately taken care of the responsibilities that came along with having a pet, including taking them to veterinary appointments and to dog training classes.

Pets are Property for Family Law Purposes

Justice Danyliuk confirmed that, without a doubt, pets must be treated as personal property, despite the strong emotional connection most pet-owners have towards their animals: I say without reservation that the prospect of treating pets as children would be treated holds absolutely no attraction for me. I say this cognizant that many dog owners, perhaps most of them, choose to treat the family dog not as property but as family. Certainly that is what these parties did. But that choice does not alter the law that pets are property. My present task is not to act with emotion or to validate the personal perspective of pet owners within the legal context. Rather, it is to interpret and then apply the law. And for legal purposes, there can be no doubt: Dogs are property. In coming to this conclusion, Justice Danyliuk recognized that while pets are property, they are treated much differently than other personal property. For example, legal protections exist to prevent pets from being treated with cruelty or neglected. In addition, a particular spouse’s long history with their pets, and the sentimental and emotional value of a pet would be determinative in making a final decision on “property division” (i.e- what would happen to the pet). However, while this makes pets slightly different than other personal property, it does not raise their status to something equivalent to a child, particularly when you consider the following comments:

• “In Canada, we tend not to purchase our children from breeders.”
• “…we tend not to breed our children with other humans to ensure good bloodlines, nor do we charge for such services.”
• “When our children are seriously ill, we generally do not engage in an economic cost/benefit analysis to see whether the children are to receive medical treatment, receive nothing or even have their lives ended to prevent suffering.”
• “When our children act improperly, even seriously and violently so, we generally do not muzzle them or even put them to death for repeated transgressions.”

Justice Danyliuk also criticized the willingness of the parties to spend money and utilize court resources in order to solve a dispute that should have been resolved without the involvement of two lawyers, a judge, and even an expert witness. While this was a Saskatchewan case, the approach of Ontario family courts has been similar. For instance, in Warnica v. Gernig, an Ontario Superior Court of Justice decision, Justice Timms stated:

• [w]hether in the Family Court or otherwise, I do not believe that any court should be in the business of making custody orders for pets, disguised or otherwise.

What Can Pet Owners Do?

In lieu of requesting a judge to make a “custody decision” about a pet, there are a number of options available to separating or divorcing couples who want to make a decision about their animals: 1) Requesting a declaration about the ownership of a pet; 2) Requesting to be compensated for time and money spent on a pet; 3) Requesting an order that a pet be sold; 4) Including provisions for your pet in a separation agreement or other written document. Of these, the most effective option is likely the last one, particularly as family law judges are unlikely to view any requests regarding pets more favourably than they would view a request for “custody” of a pet. If you have questions about what will happen to your pet following your separation or divorce, contact the experienced and compassionate Toronto family lawyers at NULaw. Our lawyers provide clear, practical advice so that you can make informed decisions. We can explain your options, include provisions for your pet in a separation agreement or take other action, and ensure that you and your former spouse can come to a mutually satisfactory decision about your cat, dog, or other animal. Contact us online or at 416-481-5604 to book a consultation.