When my clients talk about their “fur children,” I know they are talking about beloved members of their family. In the context of separation or divorce, clients ask me “who gets to keep our pets?” In Ontario, the answer is: whoever can establish ownership. That is because Ontario’s Family Courts treats dogs, cats, bunnies, and birds all as property. Therefore, if the Family Court is tasked with deciding the issue of who keeps the family dog, it will be a question of who can establish ownership. Establishing proof of ownership can be done through showing proof of purchase, whether from a shelter or breeder, or otherwise showing that the dog was gifted or given exclusively to you.
Justifiably, many clients think that treating their pets as property misses the mark. Clients ask whether they can either agree or get a Court to Order a ‘custody and access’ arrangement in the same manner as is done for human children. Unfortunately, Ontario’s Courts will not grant such orders, and they are likewise unlikely to enforce separation agreements / parenting agreements which contain these terms. Moreover, even if you can establish that you are the true owner of your pet in Court, you are very unlikely to get the Court to Order the return of the pet to you (known as an Order for ‘specific performance’). Instead, your best-case scenario is the Court awarding you a sum of money to compensate you for the value of the “property” (i.e. your dog) which is in your ex-partner’s possession.
In short, concerned pet owners should not rely on Ontario’s Family Courts to humanely deal with pet ownership issues in the context of separation and divorce.
So, what should a concerned pet owner do?
Get a Cohabitation Agreement. Until Ontario’s family law treatment of pets is updated to conform with our modern understanding of pets as family members, you can protect your furry loved ones with a creatively drafted Cohabitation Agreement. A properly drafted Cohabitation Agreement can work within the ‘property approach’ to pet ownership to make sure that your pet’s best interests are protected in the event that your relationship breaks down. Your Cohabitation Agreement will specifically address the issue of pet ownership, and can further be used to create harsh penalties in the event that your pet is withheld against your wishes.
The bottom-line is: your pets deserve to be protected, and the Family Group at Cunningham Swan can make sure that you never have to experience the heart-break of unjustly losing a pet during a separation or divorce. Call us today to schedule a consultation to protect your pet’s best interests.
