• by Samantha Rich
Originally published in the OFLM 2024-07 edition
Overview
Trigger warning for animal lovers: pets are in fact considered personal property under Ontario law.
As confirmed in a recent decision by Justice Stewart in Carvalho v. Verma (2024 ONSC 1183), who gets the family pet in a separation will not be determined by emotional ties, it will be determined much like any other personal property: who has the better claim for ownership.
Historically, the issue of pet ownership focused specifically as to who purchased the animal; however, the courts have since taken a more nuanced approach and will look at a non-exhaustive list of factors to determine pet ownership.
The modern approach recognizes that pet ownership cannot simply be determined by looking at who made the initial purchase of the pet. The courts now also look at the relationship between the parties and the dog.
While the courts avoid making “custody” orders for pets akin to those for children, they do have jurisdiction to determine ownership and thus who gets to keep the family pet when parties separate.
Dogs are considered personal property
Justice Stewart, in her decision of Carvalho Estate v. Verma (2024 ONSC 1183), affirmed that dogs are considered personal property in the eyes of the law. She writes at paragraph 24:
Dogs are personal property much like other chattels (albeit indivisible), even when purchased during the course of a relationship. The question is one of ownership, not who wants the dog more, who loves the dog more or who would be the best owner.
Courts have jurisdiction to determine ownership of the family pet where ownership of the family pet is in dispute during a separation. However, it should be noted that, “…The court has no general discretion to redistribute property or alter ownership, but as with other kinds of property there may be issues as to whether a particular piece of property was made a gift or whether it is held in trust for another party, by way of constructive or resulting trust…” (Duboff v. Simpson, 2021 ONSC 4970, at para. 16).
A seminal case in this area of law, which was also affirmed by the Court of Appeal, is the Ontario Superior Court of Justice decision of Warnica v. Gering (2004 CanLII 50065 (ON SC)). Justice Timms discussed the unique nature of pet ownership disputes at paragraph 19 of the decision:
Of course, any pet is somewhat different, in that it does not readily lend itself to physical division. A pet could be sold, with the proceeds to be divided in accordance with any determination as to the parties' respective interests therein; however, that is something that few would want. Certainly it is something that no one wants here. A pet could be shared, as happened in the case of Rogers v. Rogers. In my view that would be akin to a custody access/order. Whether in the Family Court or otherwise, I do not believe that any court should be in the business of making custody orders for pets, disguised or otherwise. To the extent that any of my colleagues may feel otherwise, I respectfully disagree. Obviously, I acknowledge that pets are of great importance to human beings. Strong bonds develop between them and the human beings that look after them. To some people, the relationship with their pets takes on a significance exceeding that of any other. They go to extraordinary lengths to preserve that relationship; even at a cost that some would say is disproportionate. Some may consider them to be children; however, they are not children. (own emphasis added)
The unfortunate reality is that while one may consider a family pet to be akin to a child, “pet custody” as it were, is not an option when seeking assistance from the court. “Pet custody” is awarded to the person who has the strongest entitlement to ownership of the family pet based on a non-exhaustive list of factors.
Factors to determine ownership
Traditionally, the question of pet ownership focused narrowly on who purchased and paid for the pet. The courts have since taken a broader approach by looking at the relationship between the parties and the dog (Carvalho Estate v. Verma, 2024 ONSC 1183, at para. 25). This is more in tune with the current social landscape where people have formed close emotional ties with their pets.
Justice Baltman’s decision of Coates v. Dickson (2021 ONSC 992) summarized a list of non-exhaustive factors at paragraph 8 of the decision to be considered in determining ownership of the family pet where two people contest ownership:
- Whether the animal was owned or possessed by one of the people before the relationship began;
- Any express or implied agreement as to ownership, made either at the time the animal was acquired or after;
- The nature of the relationship between people contesting ownership at the time the animal was first acquired;
- Who purchased and/or raised the animal;
- Who exercised care and control of the animal;
- Who bore the burden of the care and comfort of the animal;
- Who paid for the expenses related to the animal's upkeep;
- Whether at any point the animal was gifted by the original owner to the other person;
- What happened to the animal after the relationship between the litigants changed; and
- Any other indicia of ownership or evidence of agreement relevant to who has or should have the ownership of the animal.
It is important to note that ownership of a dog is not solely determined by who purchased the dog. As stated by Justice Baltman:
In my view, this broader approach is the correct one. Ownership of a dog is an investment that goes beyond the mere purchase price. It includes the care and maintenance that are an integral part of "owning" the dog. I agree with Hoegg J.A. and Miller J. that separating the purchase price from the upkeep is both artificial and unfair. That is particularly so where, as here, there are two dogs in issue and, assuming the facts support joint ownership, they can be divided. Though in a perfect world, dogs who co-reside would remain together, litigation, by definition, almost always involves some compromise. (Coates v. Dickson, 2021 ONSC 992, at para. 17)
A few arguments were unsuccessfully raised in Carvalho in an attempt to obtain ownership of the dog. Arguments were raised relating to maintaining the status quo of care of the animal, the best interests of the animal and the fact that the animal is a “companion animal” (Carvalho Estate, at paras. 45 – 48).
Accordingly, claimants will need to be careful with advancing best interests of the animal arguments. Justice Stewart held that, “The best interests of Rocco Jr. should not be confused or conflated with which party wants or loves the dog more. There is no evidence in this case that either party would be a poor or unfit custodian for the dog.” (Carvalho Estate, at para. 47)
Therefore, if a party wishes to successfully prove that the pet is a companion animal or emotional support animal, they will have to provide sufficient evidence to the court with enough detail confirming diagnosis and thus a legitimate need for a companion animal or emotional support animal. “Vague platitudes” will not be sufficient to advance this argument (Carvalho Estate, at para. 48).
Establishing whether ownership changed
If a claimant wishes to advance the argument that ownership of the family pet changed during the course of the parties’ relationship, the claimant will have to prove this on a balance of probabilities (King v. Mann, 2020 ONSC 108, at para. 71).
It should be noted that spending time with the dog, spending money on the dog, and/or treating the dog generally as the family pet, would not necessarily result in a change in ownership. Choosing the name of the family pet alone also does not necessarily result in a change in ownership. (King v. Mann, at paras. 71 & 77).
Possession of the pet is a factor which the court will consider, but not if possession is improperly taken, i.e., removing the dog without the other party’s knowledge or consent (Carvalho Estate, at para. 45).
In order to establish that one party gifted the family dog to the other party, they will have to prove the three elements required to establish a gift:
- Intention of the donor to give;
- Delivery of the gift, and
- Acceptance of the gift. (King v. Mann, at para. 72).
Interim Motions
In addition to the broader issue of pet ownership, courts have also addressed the more specific issue of interim motions relating to the return of an improperly taken family pet.
In Dorka v. Kumar (2016 ONSC 8226), the husband brought a motion for the wife to return Casper, the family dog, as the wife had taken matters into her own hands and removed the dog from the husband’s residence when he wasn’t home.
Justice McSweeney did not look favourably upon the self-help actions taken by the wife. The court also disagreed with the wife’s arguments that in law, a dog was equivalent to a chattel such as a “toaster” and that there was no basis for the court to order the return of the dog on an interim basis.
Rather, McSweeney J. referred to the Family Law Rules and held that courts are required to promote resolution of cases in a manner which is fair, just, and proportionate to the issues between the parties.
Accordingly, the court ordered the return of Casper to the care of the husband pending final resolution of the matter.
Conclusion
While an emotional issue, the law is clear: pets are personal property. The issue of “pet custody” will be determined by legal ownership, not sentimental attachment.
Practically speaking, it may be prudent to include terms regarding pet ownership in a marriage contract or cohabitation agreement. That way, in the event that parties separate, the parties’ intentions regarding ownership of the family pet are clearly set out.
Ownership disputes are resolved based on legal principles, rather than subjective emotions. For that reason, a written agreement clearly setting out who will retain “custody” of the family pet upon separation will provide parties with peace of mind and certainty.
In terms of preparation of a separation agreement, terms relating to the “custody” of the family pets should be included to avoid a ‘he-said she-said’ situation that could arise where the parties simply reach a verbal agreement regarding who will retain possession of the family pet upon separation.
For many clients, the law regarding pet ownership will be jarring and will need to be navigated with sensitivity and understanding. The notion that the family pet could be moved or removed like a piece of furniture will be a tough pill to swallow.
Accordingly, you will need to manage your client’s expectations and explain the limitations of the court regarding “pet custody” disputes in the most sensitive and empathetic manner possible.