Unfortunately upon the breakdown of a relationship it is not uncommon to see the family pet being used as a weapon. One spouse knowingly understands how important the pet is to the other spouse, and may use the pet to create additional conflict. One spouse may insist they are more entitled to keep the pet and withhold the pet, thereby creating additional conflict that must be resolved. Or the dispute may be between the spouses who both feel that they have a closer bond with the family pet than the other spouse and are better suited to care for the pet after the separation.
Is the family pet treated like a child in Ontario Family Courts?
In Family Court in Ontario, the family pet is not afforded any special treatment. The family pet is treated as "chattel" or a possession, like a piece of furniture, such as a couch, television or chair, that is to be divided by the parties. The family pet is not treated like a child where the decision-making (old term "custody") responsibility or parenting time (old term "access") of the pet is dealt with and decided by the Courts. Often the Court adopts a narrow approach to the issue, which is finding the answer to the question of "who paid for the pet", (King and Mann, 2020 ONSC 108, at paragraph 71 and Warnica and Gering, [2004] O.J. No. 5396, at paras 25 – 28). Yet owning a pet is more than just purchasing the pet. There is care, maintenance and the associated costs that are required the moment the animal is brought home.
Most of us appreciate that our pet is more than a piece of furniture. Pets offer companionship and support. The family pet is often considered a member of the family. Some owners treat their pets like their children and lavish love and attention on the pet. There are many benefits of having a pet, including companionship, learning responsibilities, etc. Realizing that the issue of ownership of the family pet is to be decided without any consideration to the fact that the family pet is more than a chattel, provides little comfort to litigants who are closely bonded with their pet.
A broader approach to the issue of the family pet
The Ontario Courts in recent years have developed a broader approach than only considering which spouse can prove that they purchased the pet, and has considered additional factors when parties cannot agree on ownership of the family pet (Coates and Dickson, 2021 ONSC 992). The Court will examine the relationship between the pet and the former spouses. The Court will consider factors such as who paid for the pet but also if there an agreement as to ownership of the pet when it was acquired or after it was acquired, who raised the pet, who exercised care and control over the pet, who bore the burden of the care and comfort of the pet, who paid for the pet's expenses, what happened to the pet after the parties' relationship ended, etc. This "contemporary" or broad approach considers that ownership of the family pet is a more complex question than only who paid for the pet.
There may be some relief on the horizon for family law litigants located in Ontario.
The pet acquiring the status of "Companion" in BC Courts
Earlier this year, the BC's Family Law Act, was changed so that the Provincial and Superior Courts can make orders of ownership and possession of the family's pet. Under the BC legislation a new definition of "companion animal" has been included and is defined as an animal that is "kept primarily for the purpose of companionship". A service animal, and animals that are kept as part of a business or for agricultural purposes would not fall under the definition of "companion animal". The BC Courts will assess the pet's best interests when deciding who will retain the family pet, including considering factors such as who historically cared for the pet and the relationship between the children and the family pet, etc.
Currently there has been no movement in Ontario to make similar amendments to align with BC's addition of "companion pets" in the family law context, but often legislative changes in one province encourage legislative changes in other provinces. The bottom line is that the changes to the BC legislation promotes the understanding that a pet is more than mere property.
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