Not surprisingly, my work exposes me to difficult family law cases on a regular basis. Occasionally, the outcome of a case makes me happy. But, because family law and family court still don’t do a good job of cases that involve violence against women and children, more often the outcomes leave me concerned about the safety of a woman and/or her children or angry that women still face such high levels of disbelief when they raise the issue of abuse in family court.
From time to time, I like to read a case in which I don’t feel an emotional investment. Pet cases fall into this category for me. This is not because I don’t care about pets: my partner and I dote on our cat and, should our relationship ever go sour, we would each want to have her company. However, I like to think that we would be able to come to a sensible outcome for all three of us without having to spend money on lawyers or tie up the court’s time and resources.
Such cannot be said about everyone and, as a result, there are dozens of family court cases about pets.
The law
No matter how long a beloved animal has been part of the family, it is considered personal property. Initially, the law interpreted ownership narrowly and simply: whichever person bought the pet was its owner.
As the judge wrote in a 2016 Saskatchewan case:
“Many dogs are treated as members of the family with whom they live. 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. . . . Am I to make an order that one person have interim possession of [for example] the family butter knives but, due to a deep attachment to both butter and those knives, order that the other party have limited access to those knives for 1.5 hours per week?”
No doubt, countless pet owners would beg to differ with the judge’s comparison of a dog to a set of butter knives.
However, even those of us who are very fond of our pets might share the judge’s frustration that these cases use up valuable court time:
“To consume scarce judicial resources with this matter is wasteful . . . [and it is] demeaning for the court and legal counsel to have these parties call upon these legal and court resources because they are unable to settle, what most would agree, is an issue unworthy of this expenditure of time, money and public resources.”
Changing attitudes
In a 2021 Ontario decision, the court expanded the approach to the determination of ownership from simply considering who had bought the pet.
In a separation fraught with animosity, both people claimed ownership of the two dogs they had acquired during their four-year relationship. While the decision about who should have the dogs live with them still hung on ownership, in this case the court set out a number of factors for consideration in these cases, drawing from a 2017 Nova Scotia adjudicated decision:
- Who paid for the animal
- The relationship between the people and the animal
- Whether the animal was owned or possessed by either of the people before their relationship began
- Whether there was an express or implied agreement as to ownership
- The nature of the relationship between the people at the time the animal was acquired
- Who exercised most of the care and control of the animal
- Who bore the burden of the animal’s “care and comfort”
- Who paid for the animal’s expenses
- Whether either person gifted the animal to the other at any point
- What happened to the animal when the relationship between the people changed
- Any other evidence of ownership, agreements etc.
- Any other relevant factors
In reaching its conclusion, the Ontario court quoted a 2018 Newfoundland decision:
“The ownership of [the dog] involved much more than a determination of who paid for her at the time of purchase. The ownership of a dog is a more complex and nuanced question than the ownership of, say, a bicycle.”
In the Ontario case, the judge concluded that both people owned both dogs. The dogs had been purchased during the marriage as family dogs and both people had invested financially in their purchase and upkeep and made significant contributions of time and energy to their care.
Given the ongoing acrimony between the ex-partners, the judge did not feel sharing the dogs would be feasible, so ordered that each of them should have one dog.
In another 2021 Ontario case, two people in a common-law relationship separated. Both wanted the dog, with the woman claiming sole ownership. The judge noted:
“Although pets are often viewed by people as members of their family, in law they are personal property. . . . The court has authority to determine ownership and to provide compensation for harm to property issues.”
The court acknowledged that the woman loved the dog “very much,” but found that the man was the owner of the dog because he had always wanted a dog, he was the one who had adopted the dog, he paid for its expenses and he was its primary caregiver.
Best interests
When courts are deciding on parenting arrangements for children after their parents separate, they use the best interests of the child test. Since animals are considered property, the issue of their best interests is irrelevant.
However, a 1980 case from British Columbia seemed to acknowledge the importance of the animal’s feelings:
However, by 2020, B.C. seemed to retreat from this approach to seeing the issue as one strictly of ownership:
Where are the cats?
In my scan of pet custody cases in Canada, I found nary a one that involved a cat. I can only conclude that judges realize what those of us who live with cats know all too well: there would be no point in ordering a cat to live with one person or another. The cat, always the master or mistress of its own destiny, will live where it wishes; court orders be damned.