Pet Custody? Understanding What Happens To The Family Pet If You Separate
By Timothy Henderson | October 24, 2024
With the assistance of law student Cady Dreger
Pets are a vital component of many family homes. Because pets are often affectionately seen as family members, some people are surprised that when, in the event of a separation, the family pet receives no special treatment: the law takes the same approach to the family dog that it does the patio furniture or entertainment system. Since animals do not have legal rights, the court often reduces them to their monetary value; therefore, if such disputes come before the court, the outcomes are often impersonal and unrepresentative of the best interests of both the pet and the family, including the children.
The Ontario Superior Court of Justice is highly resistant to hearing pet-related disputes, even in the course of family proceedings. Generally, animals have a low financial value and are typically considered to be a “waste” of judicial resources, at least in the eyes of the Court. If a dispute over a family pet must be litigated, Small Claims Court is likely the most appropriate venue. Even still, the court will often consider only the monetary investments made by each party (i.e., the purchase price of the animal, veterinary expenses, food and maintenance costs) and award ownership to the party who has made greater contributions.
That said, there have been cases in Ontario more recently that have considered other factors in determining pet ownership other than monetary contributions, such as the relationships of family members with the pet. As one example, in the 2021 Ontario decision of Coates v Dickson, the presiding judge stated that “ownership of a dog is an investment that goes beyond the mere purchase price.” In any event, the court cannot make an order for “joint custody” or enforce a “visitation schedule” for an animal in the way that it would for a human child, and decisions are not made based on the “best interests” of the pet, as they are for children.
Therefore, when dealing with pet disputes, it is better to be proactive than reactive. The best way to avoid a disappointing outcome in court is to effectively prepare a “domestic contract” – ideally by a lawyer with experience in this area of family law. Colloquially referred to as a “pre-nup,” this type of domestic contract is an agreement formed when entering a marriage or common law relationship, or at some point prior to the dissolution of the relationship, which outlines rights and obligations of the parties upon a separation or divorce. While these agreements often include legally binding provisions (such as the determination of parenting of children, support, and property issues, etc.), they can also be used to govern private arrangements between the parties that the court cannot enforce. Through such an agreement, parties may introduce clauses regarding the custody, care, and even the time-sharing schedule for their pets. This may also establish decision-making authority and financial responsibility for necessary expenses. While it is also possible to negotiate and include these issues in a separation agreement (a specific type of domestic contract made after the end of the relationship) or during mediation, the parties may have less capacity to communicate effectively by that point in time.
Sometimes, people are reluctant to discuss domestic contracts when all is going well. But because feelings can run high—and especially since pets are often a source of emotional support—it’s important for all parties to remember that the goal is to provide a clear framework for the ongoing care of your furry (or scaley!) family members. Predetermining these issues may prevent potential disputes and ensure the well-being of the pet and family amidst a relationship breakdown.
For more information regarding the creation of domestic contracts or separation agreements, please contact Henderson Family Law and schedule an appointment.
DISCLAIMER:
This content is provided as a general informational source by Henderson Family Law, and does not constitute legal advice or opinion, or establish a lawyer-client relationship. Every situation is complex and fact-specific, and appropriate advice will vary accordingly. Do not rely on this information for legal decision-making under any circumstances. Please consult with us and obtain proper advice and strategy concerning the specifics of your particular situation.