There are many people who will bring their pet into a relationship or will, together as a couple, adopt or purchase a pet for their household. With more people having a work-from-home set up, we have seen the number of pets in homes increase over the course of the pandemic. The question then becomes, how do we deal with these furry little family members on separation?
In my practice as a family law lawyer, I have seen the number of cases involving pets become more prevalent. I have dealt mostly with dogs and cats, but have had the occasional fish, bird, and even snail swim, fly or slowly cross my desk.
People are attached to their pets. Many will fight for them quite strongly or at least want time with them after the separation. If there are children involved, some people will agree that the pets travel with the child at parenting exchanges. Others will create a separate schedule for the pet. Some people are willing to split up their pets if there is more than one. Others will part with them but want to negotiate terms that ensure their pets are taken care of. However, if parties cannot agree, then family lawyers are left turning to the case law to see how they can best assist the parties, both in and out of court – and yes, these cases can go to court.
Traditionally, the Canadian courts have seen and dealt with pets as property. Judges did not consider emotional bonds or ties between pets and their owners. Instead, the courts would ask questions like:
- Who paid for the pet?
- If adopted, who spearheaded the adoption, signing the paperwork and taking the required steps to complete the process?
- Did either party own the pet prior to the relationship?
If the answers to the foregoing questions are unclear, or if there was a claimed change in ownership, other questions could be asked like:
- Who paid for the pet’s care, such as food, medication, and veterinary bills?
- Who took care of the pet’s basic needs, such as walking it, cleaning out its space like a cage or litterbox, who fed it?
- Who was more involved with the pet overall?
The goal of the traditional approach, however, is to determine the legal ownership of the pet and who has the property interest in the pet.
What has been interesting though, is that while the traditional approach continues to be the predominant approach to dealing with pets in court, we have seen a broadening of perspectives and considerations in more recent cases. This approach has come to be known as the relational approach or compassionate approach. An analysis through this lens would still consider factors from the traditional approach, but would also look at a wider range of items such as:
- The relationship between the parties and the pet throughout the course of the parties’ relationship.
- Who has demonstrated more affection for the pet?
- Are there any agreements between the parties as to ownership?
- Who took on more responsibilities when it came to the pet’s care?
- What happened with the pet after the parties’ relationship changed?
- Which party can offer what is best for the pet, for example, who can spend more time with the pet and who has a better space and set up for the pet, such as having a backyard for a dog?
While these cases are not often reported on, there have been several in the last few years that have specifically dealt with the issue of who keeps the dog in a separation (see Coates v Dickson, 2021 ONSC 992, where Justice Baltman said that “ownership of a dog is an investment that goes beyond the mere purchase price”).
We have also seen the issue of who gets the pet dealt with through the lens of a constructive trust analysis, looking at whether one party has been enriched while the other has been deprived. In the case of Duboff v Simpson, 2021 ONSC 4970, Justice Papageorgiou found that the party making the constructive trust claim could not show that she was deprived by her time spent and contributions to the pet’s care to her ex’s benefit because, at the end of the day, her actions were done out of love and care for the pet. The parties were in a relationship and participating in the dog’s care together. There were no other reasons to support a finding of unjust enrichment.
This is an area that is continuing to develop. The relationship people have with their pets and the place their pets have in their families no longer meshes with the historic legal framework. That being said, with different approaches comes uncertainty and what lawyers love to call a ‘grey’ area.
As a lawyer, taking on a pet claim can be unpredictable. At this stage, it is hard to know if a judge will follow the more traditional model or the relational model. It is a toss-up, which is why people are encouraged to negotiate their pet settlements outside of court. That being said, in or out of court, there is room for arguments based on both approaches, so strap in and get ready – you may be in for a “ruff” ride.
About the author
Olivia Koneval-Brown is one of the family law lawyers at the Mann Lawyers LLP in Ottawa and has been practicing in this area since being called to the bar in 2016. She been a member of the YLD East for a few years now.
A version of this article originally appeared on the OBA Young Lawyers Division’s articles page.