Who gets the pet can make for a contentious divorce

By Tony Poland, LegalMatters Staff • Pets are commonly considered members of the family and they can become the focus of litigious custody disputes in a divorce or separation so it is important for cooler heads to prevail when couples part ways, says Toronto family lawyer A. Julia P. Tremain.

“The issue of pet ownership can get quite contentious because they do become part of the family,” says Tremain, a partner with Waddell Phillips Professional Corporation. “It can add an entire new layer of real difficulty to the separation or divorce.”

She tells LegalMattersCanada.ca that in the eyes of the law, pets are considered property, a notion illustrated in a number of court decisions.

“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,” one judge writes in a 2016 pet custody dispute. “But after all is said and done, a dog is a dog. At law it is property, a domesticated animal that is owned. At law it enjoys no familial rights.”

‘Going to have difficulty getting a judge to engage’

Tremain says couples who take pet custody disputes to court are “going to have difficulty getting a judge to engage.”

“You end up with some judges saying this really is not what we should be litigating about. This is not what family law courts are for,” she says. “You see frustration with some of judges about that.”

She points to a 2004 Ontario court decision where Justice Roger Timms states he does “not believe that any court should be in the business of making custody orders for pets.”

“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,” he writes. “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.”

Judges may be pursued to weigh in if the issue of pet ownership has an effect on children of the marriage, Tremain says.

Children’s interests may be a consideration

“The judge may not necessarily want to deal with the issue of custody but it may factor into the negotiations in terms of how it is going to work if children are involved and they are attached to the pet,” she says. “The best interest of the child is paramount. The judge may consider if the parents are listening to the needs of their children in terms of what might happen with the pets and if they are trying to do what’s best for their children’s wellbeing.”

Tremain says determining pet ownership can be tricky.

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“It is easy if one person already owned the pet when they entered the relationship or if one person signed the adoption papers or paid for it out of their own personal bank account,” she says. “But if it was paid for from a joint bank account, you jointly own the dog.” 

The welfare of the pet could also be a consideration, says Tremain.

“If someone has a history of domestic violence, their former spouse may have concerns that person will be violent or abusive toward the pet,” she says. “There can be very serious concerns about what might happen.

‘May have legitimate concerns about what might happen to the pet’

“At the same time, the person getting out of an abusive relationship may have to look after themselves first. But they may have very legitimate concerns about what might happen to the pet they left behind.”

Conversely, not all disputes involve who retains ownership, says Tremain.

“Pets can be very expensive. Sometimes you will see one party who leaves and does not want to keep the family dog, even if they were the one who bought it,” she says. “The dispute then becomes who should be financially responsible.”

Tremain says it is rare to see pet ownership defined in domestic contracts or prenuptial agreements. However, she has handled many cases where it is part of the separation agreement, setting out aspects such as shared custody or financial obligations. She suggests couples have the discussion about their pet early in the separation.

“People always are better off talking to each other about their expectations,” Tremain says. “Don’t wait until the last minute when one spouse is moving out to decide who is keeping the pet.”

Reaching an agreement is preferrable

She says couples should do their utmost to find an agreement when it comes to pet custody or financial obligations.

“If they agree on everything else except the pet and their separation agreement falls apart because of that, that can be pretty costly,” Tremain says.

She also advises finding a resolution without going to court.

“We know pets can be invaluable to their owners, but do you really want to spend thousands and thousands of dollars in court litigating over the family dog?” Tremain asks. “I am not minimizing the importance of pets in people’s lives. I certainly do have files where they are of huge importance to my clients. 

“But this issue would be far better suited to mediation. And it does not have to involve formal mediation. Perhaps it can be a neutral third party to help put things in perspective.”

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