Who Gets The Pets During A Divorce in Ontario?
One of the many concerns that divorcing spouses face is who will care for the pets following the divorce or separation. In some circumstances, the solution will be obvious. Perhaps the dog is most attached to one of your children and it makes sense for the dog to stay with the child, wherever that might be. Perhaps your spouse owned the cat for years before you even met them and you are happy for them to keep the cat after the separation.
Unfortunately, in some circumstances, deciding who gets the pets during a divorce in Ontario can become an area of conflict between the spouses. If you are concerned about what will happen to your pets during a divorce or separation, our team of family and divorce lawyers are ready to help. With offices in Chatham, Strathroy, Stratford, Kitchener, Sarnia and London – we make it easy for residents of Southwestern Ontario to have easier access to justice.
Pets are considered personal property
Despite the fact that many people love their pets like children, pets are not treated like children by the law when their family goes through a divorce. Rather, they are generally treated as personal property.
Personal property, or personal possessions, are distinguished from real property (land) and financial assets (bank accounts, investments, pensions). Personal property is essentially all the stuff you own including:
- your vehicle
- your toothbrush.
Division of matrimonial property in Ontario
In Ontario, when a married couple divorces, they must equally divide the value of:
- the property they acquired during their marriage, and
- the increase in value to any property either spouse brought with them to the marriage.
There are certain assets that can be excluded from this calculation, such as inheritances and insurance pay-outs.
The value of personal property may or may not be included in this calculation depending on whether it seems worthwhile. Your car and other personal possessions of significant value will be included on the list of matrimonial property. Your toothbrush will not. The same holds true for pets. Your horse might be included on the list. Your goldfish will likely not.
Inflated purchase prices for pets seen during the pandemic may mean that the value of a dog or cat is more likely to be included in the calculation of matrimonial property in the future.
But this doesn’t solve the issue of what happens to the pet itself during a divorce. The law in Ontario dictates that personal possessions are retained by the spouse that owns them. In most cases, this will be the spouse that purchased the item. In the case of an item that was purchased jointly by the spouses during the relationship, and in the absence of an agreement between the spouses, the court has the jurisdiction to order that the item (or pet) be sold and the proceeds of sale be divided between the spouses.
How do you prove ownership of a pet?
What do you need to do to prove that you (rather than your spouse) are the owner of your pet? There are several factors that a court might look at in the event of a dispute over who is the true owner of a pet, including:
- receipts for purchase
- whose name is on any breed registry documents
- whose name is on the municipal registry
- whose name is associated with the pet’s file at the veterinarian’s office
- who paid for the pet’s ongoing expenses such as food, grooming and veterinary care.
Unfortunately, these indicators may not reflect the reality of which spouse was the owner of the pet.
Is the law different for common-law spouses?
While the law relating to matrimonial property does not apply to common-law couples, the end-result of what happens to the pets during a separation is the same. After a separation, each spouse keeps the property that they purchased during the relationship. Therefore, a pet that was purchased during a common-law relationship would legally go with the spouse who made the purchase.
How the courts have treated requests to deal with pets after a divorce
In Ontario, the courts have been reluctant to deal with pets at all and have flat-out refused to treat them as anything other than personal property. In 2005, the Court of Appeal for Ontario upheld the dismissal of a court application for joint custody of a pet dog. A case conference judge had dismissed the application as “a waste of time, a nuisance or an abuse of the court’s process.” The Court of Appeal agreed with the case conference judge’s assessment that the Family Court did not have the jurisdiction to hear the application, meaning the court did not have the authority to issue a custody order in relation to a dog.
A more recent decision by the Newfoundland and Labrador Court of Appeal has suggested that the courts in this country may be ready to change their ways of thinking about pets as property. In that case, the majority of the court took the traditional position that the pet in question was owned by the boyfriend, who had purchased it. One judge, in a minority decision, ruled that the girlfriend, who had supplied most of the care for the dog while the boyfriend frequently travelled for work, was the co-owner of the dog based on a finding that it was not appropriate to treat pets like other forms of property.
While this case hints at the potential for future changes to the way family law treats pets, for now it remains true that the courts are not the best venue for determining who gets to keep a pet during a divorce.
Using a domestic contract to protect your pets
So how do responsible pet owners deal with potential conflicts? One option is to include a provision dealing with pets in a cohabitation or marriage agreement. This may help prevent disputes from arising in the first place and, if it doesn’t, a court will enforce an agreement respecting a pet.
If you did not think ahead and include plans for your pets in a cohabitation or marriage agreement, you can still come to an agreement with your spouse regarding who will keep the pets. Our divorce lawyers are available to answer any questions you have regarding who gets the pets during a divorce – contact our London divorce lawyers today.
*Disclaimer: This blog is only intended to act as a general overview on a legal topic and does not constitute legal advice. Please consult with a divorce and family lawyer for specific legal advice as it pertains to your situation.