Disclaimer: This article aims to provide educational information surrounding divorce and separation. It is not intended to serve as legal advice. Consult with a lawyer and exercise your discretion before taking action based on the information provided in the blog.

Our family pets are special. If you are a pet owner, you know what your dog or cat (or even parakeet) means to you. They are a part of the family.

And when going through a divorce or separation, you may wonder what happens to your pet. How do you decide who gets to keep the pet? Are you going to share custody of your dog? How do you determine who owns your pet and what’s best for your furry best friend?  

In this article, we will talk about how Ontario’s law currently treats pet custody cases, as well as BC’s new pet custody laws. Finally, we will look at how you can have a better chance of keeping possession of the pet.  

What happens to pets under the Family Law Act? 

According to the Family Law Act, your beagle and bagel slicer are the same: pets are property. This means that, in the absence of a domestic contract, they are subject to the same principles that apply to other types of property.

 As far as Ontario’s family law is concerned, it comes down to who owns and cares for the pet. This can be determined by who purchased the pet, whose name is on the registration or adoption papers, who pays for the pet’s expenses, and who primarily cares for the pet.

Unlike children, pets are not considered in terms of custody or visitation rights under the legislation.

However, the case law shows two different approaches when it comes to how pets are treated. One is a more strict approach where the court looks at ownership. The other approach is broader and looks at the relationships between the animal and the parties. 

How do the courts determine pet ownership when making custody decisions?

If one party brings a pet into the relationship, that party will generally retain possession when the relationship ends. However, what happens to a family pet that comes along later? 

When it comes to determining who will keep the pet, the courts will ask questions such as these: 

Who paid for and acquired the pet initially? 

A tangible proof of payment, such as a receipt, can be crucial. It serves as a clear indicator of who made the initial purchase.

Who covered the veterinary care and daily needs?

The individual who consistently pays for veterinary care and daily essentials like food and grooming is often seen as the primary caregiver. This financial responsibility underscores their role in the pet’s day-to-day well-being.

Whose name is on the pet’s paperwork?

Ownership can be determined by whose name appears on licensing or medical paperwork. Documents like adoption records, proof of purchase, or registration agreements can establish legal ownership.

When you separated, did either party surrender possession rights? 

If you leave the marital home without the pet, this can weaken your claim to ownership. Abandoning the pet may be viewed as surrendering possession rights.

Could we have joint custody of the dog after our separation and divorce?

Yes!  

In fact, this is why mediation and collaborative family law is sometimes beneficial. Because it allows you to make arrangements that are in the pet’s and your family’s best interests. You can make any kind of custody arrangements. 

For example, some families combine their pets’ and child custody and access arrangements, e.g., the dog travels with the children from one parent to the others. However, these agreements are unlikely to be enforced if a pet custody dispute arises.

British Columbia: Changing views of pet ownership and new pet custody law

While Ontario’s law has not changed, British Columbia has become the first in Canada to change its law to recognize that pets need special considerations during a divorce, unlike other property. The Family Law Amendment Act, 2023, includes new rules for dividing property that specifically address what happens to pets when a couple separates. 

Under the new law, pets are defined as “companion animals.” The law allows couples to make agreements about who gets the pet or how to share pet care, and it gives the courts the power to uphold these agreements and make orders regarding pets.

It also requires the court to consider the following factors when determining pet custody or making other orders respecting a pet: 

• how the companion animal was acquired;
• how much each spouse cared for the companion animal and their willingness and ability to do so going forward;
• any history or risk of family violence;
• a spouse’s cruelty, or threat of cruelty, toward an animal;
• any children’s relationship with the companion animal;
• any other circumstances the court considers relevant.

Negotiating your separation agreement and navigating pet custody with Plat Simionati LLP

At Plat Simionati LLP, we understand that pets are more than simply property; they are beloved members of the family. Whether you purchased or adopted the pet, our family lawyers can help you navigate the issue of pet custody and protect your relationship with the pet.

Our law firm provides mediation and collaborative law services, providing a less adversarial approach to resolving custody battles, including the custody of the family dog. We also handle traditional family law cases and can guide you through divorce proceedings, addressing the ownership of family pets and ensuring their well-being. If you are facing a separation and are concerned about who gets the family pet, our team is here to assist you.

At Plat Simionati LLP, we practice family law, and we do it well. Contact us today to protect what is important to you.