Most people would agree that pets are, essentially, family. Pet ownership is prevalent among Canadians, with over 60% of households reporting ownership of at least one cat or dog.
It’s no wonder that determining who gets the pets in a divorce can become highly contentious. Beyond the affection the parties feel for their pets, additional factors, such as parenting time and those children’s attachment to the pets, can also impact the parties’ positions relating to the “custody” of their pets following a separation.
Below, we’ll outline how Ontario law treats pets in the event of divorce. And, while pets are considered “property” for property division purposes, unique considerations may come into play when determining who gets the pets in a divorce.
Divorce and Property Division: A Refresher
Ontario’s Family Law Act, R.S.O. 1990, c. F.3 dictates how property is divided between spouses in a divorce or common-law spouses in a separation. A high-level overview of this process is as follows:
- The parties in a divorce calculate their “net family property” (in other words, the value of their property at the time of separation minus the value of their property at the time of marriage. Debts are excluded from this calculation.).
- The spouse with the higher net family property pays the other spouse half of the difference between their respective net family property as an “equalization payment.”
For example, suppose one spouse has $50,000 in net family property while the other spouse has $500,000 in net family property. In this case, the spouse with $500,000 would pay the spouse $225,000 (50% of the value of the difference).
Remember that the rules relating to the division of property aren’t applicable in all divorces. For example, the parties might agree to an unequal division of property. In other cases, the court might order unequal division of the parties’ assets. Speaking with an experienced family law lawyer for guidance on your unique situation is critical.
Nevertheless, in Ontario, pets are considered “property” and, as such, will be considered as such for property division.
Pets and Division of Property in a Divorce
So, where does this leave your pets in a divorce? Speaking generally, ownership often plays a role in determining who gets to keep a pet when a divorce occurs.
For example, suppose one of the parties owned the pet before they entered into a relationship with the person they are divorcing. In that case, the pet will likely be excluded from the division of property. The person who owned the animal before the relationship started will likely be entitled to retain ownership of the pet from the court’s perspective.
If the parties purchased the pet together, it may become more difficult for one party to prove ownership of the pet.
Underscoring the challenges associated with claiming ownership over a pet during a divorce is that, unlike children, Ontario courts do not typically make orders relating to custody and access to an animal.
However, Ontario courts have provided some guidance on how the law should approach issues relating to pet ownership following a divorce.
How Ontario Courts Have Addressed Pet Ownership in Divorces
In Duboff v. Simpson, 2021 ONSC 4970, a 2021 case from the Ontario Superior Court of Justice, the court addressed the issue of pet ownership in divorce along with a thorough summary of the applicable legal principles.
The court began by acknowledging that, while pets are often viewed as family members, they are typically treated like personal property from a legal perspective. So, when determining who gets to keep a pet or pets following a divorce, the court would traditionally look at who could establish ownership of the animal.
However, the court noted that in a more recent case, Coates v. Dickson, 2021 ONSC 992, the court had taken a more holistic approach to considering ownership. This case suggested that courts should consider, among other things, the following factors to determine ownership of a pet in a divorce:
- Whether the parties made any agreements relating to ownership of the pet;
- Who purchased and/or raised the pet;
- Who exercised “care and control” of the pet;
- Who primarily cared for the pet;
- Who paid the pet’s expenses;
- What happened to the pet after the parties separated and
- Any other evidence could indicate that one party had or should own the pet.
Cases in other provinces have referenced similar factors when determining pet ownership in a divorce, suggesting that this broader approach has gained traction among the courts.
Strategies for Dealing with Pet Ownership in a Divorce
Of course, the considerations above may not apply if the parties have already agreed regarding pet ownership following a separation. If you are in a relationship and have pets, it’s worth considering strategies that can help establish what will happen to the pet if you separate.
For example, creating a prenuptial agreement or marriage contract can be a wise move for spouses who own pets together to establish who will care for the pet in the event of a separation. Other less formal documents, such as breed registration, can also help establish ownership and indicate the parties’ long-term intentions regarding the pet’s future care.
If the parties have already separated, pursuing alternative dispute resolution options such as negotiation or mediation can effectively agree on the division of property, pet ownership, and other relevant matters. Remember that, unlike a court order, alternative dispute resolution processes do not require you to follow the court’s guidance. Consequently, the parties may be able to agree to a pet ownership scenario that suits their respective interests rather than the court’s legal approach to ownership of pets, such as joint ownership.
Regardless of your situation, it’s best to consult an experienced family law lawyer when dealing with pet ownership or other challenging issues following a divorce. They will be in the best position to advise you on your rights and determine the best strategies or processes to resolve any outstanding matters.
For Comprehensive and Compassionate Family Law Advice Contact Tierney Stauffer LLP in Ottawa
Tierney Stauffer LLP’s experienced family law and divorce lawyers help clients navigate challenging family law issues after separation or divorce. We provide honest and practical legal advice to help clients understand their rights and options, empowering them to make the best decision for their unique situation.
We understand the challenges couples face during a divorce or separation and that family law can be an especially emotional area of the law. Whether you require representation during negotiations or a compelling partner in the courtroom, Tierney Stauffer LLP’s lawyers successfully advocate for clients regarding all aspects of separation.
To schedule a family law consultation, contact us online or call 1-888-799-8057.