To many of us, pets are more than just animals; they provide companionship, unconditional love and affection, and become part of the family. In 2022, 60% of Canadian households owned at least one dog or cat. This number grew following the COVID-19 pandemic; one-third of pet owners have brought a pet into their home since the beginning of the pandemic. As the number of pet owners increases, so does the number of 'pet custody' disputes. These disputes have extended beyond the realm of dogs to include cats, reptiles, horses, and even pigs. People have even reported staying in a relationship solely to maintain access to a shared pet.

These disputes leave many asking: who gets custody of your pets when your pets outlast your relationship? As many of us consider our pets to be as important as our children, we might assume that the answer lies in our pet's best interests. The rightful owner should be the one with the bigger yard, who has the most time to spend with your pet, and who your pet is most attached to. Unfortunately, this is generally not the case in Ontario – however, recent decisions and legislative amendments hint that this could be changing.

The Traditional Approach to Pet Custody

The traditional approach to pet custody is that there is no pet "custody". Animals have historically been considered chattel, or personal property, in the eyes of the law. The relevant legal test to determine ownership was who owned the animal and the adjudicator did not examine what was, or was not, in the animal's best interests.1 We've addressed this issue in two of our previous blogs on the topic of pet custody from 2017 and 2019.

Courts have explicitly discounted the possibility of joint custody orders for pets as a waste of judicial resources and a source of additional stress, heartache, and wasted time and money for parties.2 While this approach is straightforward and relatively easy for the courts to apply, it inevitably leaves one party vindicated, one heartbroken, and the best interests of the animal wholly unconsidered.

But again, change may be coming.

A 'Contemporary' Approach?

Coates v Dickson, a recent Ontario Superior Court decision, adopted a 'contemporary' approach to dog ownership which examines the relationship between the dog and the parties claiming ownership. It states that the court must consider the following factors, including:

  1. whether the animal was owned by one of the parties prior to the relationship;
  2. an express or implied agreement in relation to ownership, either before or after the animal was acquired;
  3. the nature of the relationship between the parties when the animal was acquired;
  4. who purchased and/or raised the animal;
  5. who exercised care and control over the animal;
  6. who cared for the animal the majority of the time;
  7. who paid for the animal's basic needs;
  8. whether the animal was a gift to one of the parties;
  9. what happened to the animal after the relationship between the parties ended; and
  10. any other indications of ownership or evidence of agreements relating to ownership.3

This 'contemporary approach' incorporates elements of the traditional property-based approach, including evidence of ownership and who initially paid for the animal. However, in holding that "[o]wnership of a dog is an investment that goes beyond the mere purchase price,"4 the court included non-property based factors, including who raised the animal, exercised care and control over them, and who was their primary caregiver. In this case, the court held that the two dogs in question were jointly owned by the former spouses and gave one to each spouse.5 While this is far from a shared parenting time agreement, unless we're operating under the law from The Parent Trap, it is a step towards a legal conception of pets as more than chattel.

Legislative Changes in British Columbia

In March 2023, amendments were proposed to British Columbia's Family Law Act in an attempt to clarify the law on pets following the breakdown of relationships. If accepted, these changes would require the courts to consider each person's ability and willingness to care for the animal, the relationship any children of the relationship have with the animal, and any risk of family violence or cruelty posed to the animal. Proponents of these amendments point to changing values in society surrounding pet ownership towards considering pets as family members and not property. There are currently no similar provisions in Ontario's Family Law Act; however, if these amendments come into force in British Columbia, similar changes to family legislation throughout Canada could follow.

In the Meantime, What Can I Do to Maintain Custody of My Pet?

Under the current legislative regime, what can you do to ensure that you maintain custody of your pet if your relationship ends? Here are several things that can help:

  • Keep detailed records of:
    • who paid for your pet or their adoption fees;
    • any unofficial agreement as to the ownership of your pet in case of a break-up;
    • who pays for your pet on a daily basis, including food, veterinarian visits, grooming, and other basic needs;
    • who is the primary caregiver of your pet;
    • whether you brought your pet into the relationship or acquired them during the relationship with your partner; and
    • whether your pet was a gift from one partner to the other.
  • Make sure that you are listed on official paperwork as an owner of your pet, such as veterinarian records, adoption applications, and pet insurance policies.
  • If you have or plan to get a cohabitation agreement or marriage contract, you can include a provision about who gets to keep your pet if the relationship ends.
  • Refer to our previous blog on the legal avenues you can take to pursue custody of your pet, including commencing court proceedings or participating in arbitration.

If uncertain, you can always consult with a family lawyer to discuss your options.

Footnotes

1. Baker v Harmina,  2018 NLCA 15 at para 12.

2. Ibid at paras 23-26.

3. Coates v Dickson,  2021 ONSC 992 at para 8. This approach has been adopted in subsequent Ontario decisions. For an example, see Duboff v Simpson,  2021 ONSC 4970 at paras 18-19.

4. Ibid at para 17.

5. Ibid at paras 19-20.

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.