Following a relationship breakdown, the separation process can be emotional and stressful. Many issues may arise, including spousal support and property division. One thing that can add to the stress is the issue of who gets to keep the family pet. With deeply held feelings about our pets, this can quickly become a contentious issue.

This article takes a look at some of the issues relating to pets during a separation and some options for resolving them.

Ownership and other pet issues during a separation

A range of issues may come up during the separation process. For example, each person may want to keep the pet or at least have the pet for some of the time.

Other issues might come up as well, such as who will pay or how to split expenses relating to the pet, such as vet bills or pet insurance premiums.

Seeking to reach an agreement

Often, it will be possible to resolve these issues informally. However, it is also possible to resolve these issues in a separation agreement.

A separation agreement is a legally binding contract between the two parties getting separated and is negotiated and finalized following their separation. It lays out, in detail, each person’s rights with respect to important matters, including the division of property.

If an agreement can’t be reached, the courts regard pets as property

It is possible to apply to the court to receive a decision as to who legally owns the pet. This is relatively rare but does sometimes come up in the context of broader separation disputes that also deal with other issues like spousal support and rights to the matrimonial home.

The first thing to understand is that animals are considered in law to be personal property. This means that disputes are decided on the basis of the ownership of the animal. The principles of custody and access that apply to the care of children have no application. For example, there is no consideration of the best interests of the pet.

The courts have taken two approaches in determining ownership of pets

The more traditional approach was to simply look at who paid for the pet. Under this approach, care and maintenance of the pet (such as who paid the vet bills and for food and took the pet for walks) was seen as irrelevant to ownership.

However, a more contemporary approach has been to examine the entire relationship between the people and the pet. A range of factors might be considered, including:

  • whether the animal was owned or possessed by one of the people before the relationship began;
  • any express or implied agreement as to ownership, made either at the time the animal was acquired or after;
  • the nature of the relationship between the people contesting ownership at the time the animal was first acquired;
  • who purchased and/or raised the animal;
  • who exercised care and control of the animal;
  • who bore the burden of the care and comfort of the animal;
  • who paid for the expenses related to the animal’s upkeep;
  • whether at any point, the animal was gifted by the original owner to the other person;
  • what happened to the animal after the separation; and
  • any other indicia of ownership, or evidence of agreements, relevant to who has or should have ownership of the animal.

Courts sometimes find that a pet is jointly owned.

One recent court decision split up a separated couple’s two dogs

In a recent decision of the Superior Court of Justice of Ontario, a judge applied the second approach described above, noting:

In my view, 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. … separating the purchase price from the upkeep is both artificial and unfair.

The parties, in this case, acquired two dogs during the course of their relationship. They managed to resolve the other issues, including spousal support and occupation of the matrimonial home, before trial. However, they couldn’t agree on where the dogs should live, so the matter proceeded to court. Both spouses were significantly vested in both dogs and claimed ownership of them. In the alternative, they each sought one dog. To complicate matters, they both preferred the same dog.

The judge noted that both parties invested financially in the purchase and upkeep of the dogs, including food and veterinary expenses, both made significant contributions of time and energy toward their welfare and upkeep, both are listed in official documents connected to the dogs, and both believed that the dogs would be therapeutic to their recovery from the mental and emotional stress of the separation.

As a result of these findings, the judge decided that both of the dogs were jointly owned. Given that both parties were more or less equally involved in looking after them, and due to both logistical difficulties and interpersonal conflict, they could not share or jointly manage the dogs, the judge decided that the dogs needed to be separated. The judge gave the favoured dog, purchased in response to an attempted break-in, to the wife because it appeared to have the protective qualities that were particularly important to her.

Contact NULaw in Toronto for guidance on the division of property and assets

NULaw and its predecessors have been helping clients in Toronto since 1953. We have extensive knowledge of family law issues and regularly provide honest and practical legal advice on these matters, including all types of separation issues. 

Obtain experienced legal guidance from family lawyer Lex Arbesman and ensure that you receive a fair division of your property and assets. Our goal is to understand your unique situation and protect your financial future during what can be a challenging emotional time in your life. Contact us online or at 416-481-5604 to book a consultation.

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