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Article written by Ron Shulman
Most pet parents treat their dogs or cats as much more than merely four-legged animal companions.
According to a Canadian IPSOS-Reid study,[1] about 83 per cent of pet owners consider their pet to be a beloved family member, and 98 per cent admit to talking to them. About 69 per cent of owners allow their pets to sleep in bed with them.
Indeed, one of the things that often brings romantic partners together in the first place, is a shared love of animals. But when the relationship ends in divorce, it can give rise to what is colloquially called a “pet custody” dispute – with the former couple fighting in court over ownership or access to their once-shared pets.
Pets as Property in Ontario
The first hurdle in such cases is often for the court to set the former couple’s expectations straight on a key legal concept: In Ontario, no one has the right to “custody” of a pet (as would be the case with any children from the relationship) upon separation or divorce. Instead, by law all pets are considered physical “property” or possessions – like the household furniture or other family possessions would be. This means that a post-split right to own and possess the family pets are subject to the same laws that govern the division of regular matrimonial assets.
This was the ruling in a case called Coulthard v. Lawrence,[2] where an Ontario court was asked to settle a dispute between a separated couple over their two shared dogs. The court confirmed that pets are not considered family members, and child custody principles simply do not apply to these kinds of disputes. Instead, the outcome merely hinged on which of the former spouses had legal ownership, and the related right to possess the dogs.
Note that Ontario is no different than other parts of Canada: This same approach has been taken by courts in a few other provinces where the issue has been raised so far. In a case called Baker v. Harmina[3] the Newfoundland Court of Appeal was asked to determine which of two former romantic partners owned the family dog. The man had purchased the dog, but during the relationship, it had been cared for mainly by the woman, since the man’s work frequently took him out of town. The Appeal Court declined to find a “joint ownership” model was right for settling the dispute, and instead began its ruling by saying:
In the eyes of the law a dog is an item of personal property. That doesn’t mean dogs aren’t important. It means that when two people disagree about who should get a dog, the question is not who has the most affection for the dog or treats it better (so long as both parties treat the dog humanely). The question is who owns it.
The court added that “the legal system is not well equipped to deal with the problems raised by joint ownership of dogs,” and declined to order a “custody” schedule, predicting the same difficulties around drop-off, vacations, etc. that child custody arrangements are often plagued with. In the end, the court declared the man the sole owner in that specific case.
Likewise, in a B.C. pet case called Brown v. Larochelle,[4] the court that confirmed the pets-as-property idea, went on to reject the notion that partnership law principles could be applied to cobble together a workable arrangement between the former couple and the dog they once shared while still living together.
And finally, in a Saskatchewan decision called Henderson v Henderson,[5] the court made the point bluntly:
Dogs are wonderful creatures. They are often highly intelligent, sensitive and active, and are our constant and faithful companions. Many dogs are treated as members of the family with whom they live.
But after all is said and done, a dog is a dog. At law it is property, a domesticated animal that is owned.
Strain on Judicial Resources
While pet-lovers may bristle at this approach, it makes sense from a more practical perspective: If pets were treated by the Ontario legal system in the same manner as children, they could be the subject of similar legal custody determination – and more often than not, a custody dispute that would have to be resolved by the court. This in turn would eat up legal and judicial resources, which are already very limited.
Recognizing pet custody as a legal concept could also give rise to enforcement disputes. After a divorce, former partners would have to agree to a “pet-custody schedule”, or have one imposed on them by the court. If one or both former partners refuses to abide by its terms and constraints, then this would require a trip back to court to have the schedule enforced. That means more unwanted pressure on an already-strained justice system.
The court in Henderson v Henderson[6] illustrated the potential absurdity of this approach, by likening the post-divorce dispute over dogs to one involving the question of which former spouse should have custody of the family butter knives on a weekly basis, to butter his or her toast. The court added:
In a justice system that is incredibly busy, where delay has virtually become systemic, where there are cases involving child welfare and family matters that wait months for adjudication, these parties have chosen to throw this dispute into the mix. I am sure that to them, this is the most important matter. But it must be kept in perspective and measured against other matters, many of which inarguably are of more importance. … To consume scarce judicial resources with this matter is wasteful. In my view, such applications should be discouraged.
The U.S. Position
Leaving those more practical concerns aside, Canadian pet-lovers will be happy to hear that U.S. law around post-divorce pet ownership is considerably more progressive in some states than it is in Canada.
For example, there has been a revolutionary change recently in California, where the traditional property-law-based approach to pets has given way to the option for judges to consider shared custody arrangements as part of a concern for “the care of the pet animal.”
Under a new law, introduced as Assembly Bill 2274 and in-force as of January 1, 2019, a judge must consider – both during and after a couple’s divorce – whether the well-being of any pets the couple owned and shared has been taken into consideration. Practically speaking, this means that a person is able to petition the court for sole or joint ownership based on the “care of the pet”, which is legislatively defined as “the provision of food, water, veterinary care and safe and protected shelter” as well as “prevention of acts of harm or cruelty”. Pursuant to this innovative legislation, a person who is part of a divorcing couple can also ask the court for an order requiring either of them to care for the pet prior to the divorce becoming finalized.
Similar versions of this law have also been passed in Illinois and Alaska.
Also, more than 40 states have recognized the concept of “pet trusts”, under which the former couples agree to jointly contribute toward a trust fund, to be used to provide for the care of their living pets during the lifetime of the person(s) setting it up. This implicitly elevates the status of pets from simply being inanimate personal property, to something for which it is recognized that deliberate financial and other arrangements must be made.
Is Canadian Law Poised to Follow the U.S. Trend?
Although Canadian divorce law has not yet embraced either the “pet trusts” idea or the California-style pet laws, the question that arises is whether it should – or whether it is likely to.
At least one B.C. court thinks the answer to that second question, is “no”.
In a 2017 decision in Brown v. Larochelle[7] involved a pet-ownership dispute between a young former couple. After reviewing the existing law, the court not only confirmed that pets are still to be treated as property, but it also assembled a number of key principles that could be collectively derived from the Canadian case law so far. According to that B.C. court, those included the notions that in this country at least: 1) pets are a “variant” of personal property; 2) pets will not be treated in a manner like children; and 3) Canadian courts are unlikely to find that joint sharing of pets is appropriate.
So, at least for the near future, pets and butter knives are all the same as far as Canadian divorce laws go. Should Ontario family law adopt a more pet-friendly approach? What are your thoughts?
[1] As cited in Barry Seltzer, B.A, LL.B, TEP and Gerry W. Beyer, J.S.D., LL.M., J.D., B.A., Fat Cats & Lucky Dogs: How to Leave (Some of) Your Estate to Your Pet: Everything You Need to Know to Protect Your Pet If You Become Sick or Die (2010, Kindle Edition) at https://www.amazon.ca/dp/B01FRCBYGY/ref=dp-kindle-redirect?_encoding=UTF8&btkr=1 at p. 2. Also referenced by the court in Coulthard v. Lawrence, 2011 CarswellOnt 15952, [2011] O.J. No. 6207.
[2] 2011 CarswellOnt 15952, [2011] O.J. No. 6207.
[3] 2018 NLCA 15 (CanLII), http://canlii.ca/t/hqtpk
[4] 2017 BCPC 115 (CanLII), http://canlii.ca/t/h39zb
[5] 2016 SKQB 282 (CanLII) http://canlii.ca/t/gtpzd
[6] 2016 SKQB 282 (CanLII) http://canlii.ca/t/gtpzd
[7] 2017 BCPC 115 (CanLII), http://canlii.ca/t/h39zb