Pets in Separation/Divorce
Under family law, how has the court treated pets?
In Ontario, courts pets are typically treated similar to other pieces of personal property. Although there is typically close attachment between pet owners and their pets, Ontario family law courts do not allow parties to use child custody/access solutions regarding their animals. The court typically considers factors such as ownership records, who has assumed primary care for the pet, and who legitimately purchased the pet.
How have things changed in regards to pets?
Regarding jurisdictions pertaining to pets, some provinces outside of Ontario such as BC’s new laws recognize that pets are family members and that they are not possessions. Legal decisions will now consider the care the pet receives as well as if there is any history of family violence. Also, Newfoundland is also beginning to acknowledge that pets are more than inanimate objects, and are beginning to consider the actual pets well-being in ownership as opposed to just solely looking at custody decisions. Custody arrangements have worked out in a similar manner to child custody in these few modern cases. However, it does still remain to be seen whether or not the province of Ontario shall adapt to this new approach.
What takes precedence over who paid for the pet? What needs to be proved to the court to obtain custody of the pet?
Although ownership is typically determined by who primarily paid for the pet, the well-being and best interests of the pet are continuing to be highlighted as increasingly more important factors and taking precedence over ownership in deciding who gets to keep a pet. To ensure you obtain custody of a pet over your spouse, you again must ensure that you can prove you are in the best position to provide for the pet’s well-being, and that obtaining custody is in the pet’s best interest.
In some cases where spouses jointly own a pet, if you want to obtain custody you must bring an application under the family law act for a determination that you are the pet’s rightful (sole) owner. Of importance is whose name is on the pet’s veterinary records and who registered the pet with the municipality. In the rare case where both spouses may not wish to achieve ownership interest in the jointly purchased pet, the judge will likely order that the pet is to be sold on the open market (with proceeds of sale divided between its joint owners). The judge may also order that neither party may take ownership/buy the pet, if that is to be the best case scenario for all parties involved.
Is ownership affected by marriage or divorce?
Ownership typically does not change regardless of marital status. Additionally marriage does not grant a spouse an automatic right to ownership of each other’s possessions (including pets). Courts typically look at a number of factors listed below in determining who gets to assume ownership of a pet upon separation.
List specific factors that are considered to determine ownership.
The court will consider several factors to determine which spouse has a right to a pet including:
- Who paid for the pet?
- Who is in the best position to provide continued care?
- Was the pet a gift from one party to the other?
- Who has assumed responsibility and is the point of contact over medical paperwork?
- Was the pet jointly brought in during the course of the relationship?
How can I get possession of my pet before trial?
You can do a motion to get a temporary order for possession of the pet until trial. A final order will be made at trial. You must establish that you are the rightful owner as opposed to your ex. You need to show that you were the primary person in charge of the care including the pet’s veterinary care.
What are things you can do in a cohabitation situation to ensure you retain custody of a pet you brought into the relationship?
In a cohabitation situation, to ensure you retain custody of a pet you brought into a relationship with the other party, there are several steps to take:
- You should be keeping records of expenses related to the pet at hand (including vet bills or purchase receipts, to establish ownership)
- Ensure your name is associated with the pet in any official records including licensing, and/or microchip registration in some instances
- Maintain primary responsibility for the pet’s care and well-being (i.e. feeding, grooming, medical care)
- Establish your intent to retain ownership of the pet through written agreements or communication with your partner
- Seek any legal advice to create a well-drafted cohabitation agreement that can outline what steps pet owners can take to ensure the pet’s best interests are protected in the event of a separation.