Who Gets The Pets During a Divorce in Ontario

Written by: Galia Amoils 

Treating your pet as if they were part of the family has become the status quo in North American homes. However, in the context of divorce, what do the Courts have to say on the subject?

HOW COURTS VIEW PETS IN FAMILY LAW MATTERS

Justice R.W. Danyliuk of the Court of Queen’s Bench for Saskatchewan, in the Saskatoon Family Division, decided to tighten the leash on the issue.  In the case of Henderson v. Henderson, 2016 SKQB 282, Justice Danyliuk found himself dealing with a disagreement between a divorcing couple who could not agree about where their pet dogs (Kenya and Willow) should live. In particular, the wife was seeking an arrangement akin to primary residence whereby Kenya and Willow would reside with the wife on a permanent basis, and she would offer visitation rights to her husband. In addition to her claim for primary residence, the wife was seeking full decision-making powers over her beloved pets. Oftentimes coined as the best interest of the pet test, the above-outlined argument has been attempted before on tax-payer’s dollar – although traditionally the Canadian Courts have declined the opportunity to get involved in resolving clashes over pets. Justice Danyliuk however, decided to take a more authoritative tone and provide some finality on the topic.  

PETS ARE PROPERTY 

According to His Honour, the only correct way to deal with the family pet problem is to accept the fact that family pets are fundamentally property, and as such, they are governed by the law of property when attempting to determine issues relating to ownership and possession. While acknowledging the emotional complexity of the bond between pet and human, the Court explained to the parties that arguing over ‘parenting time’ of a dog is equivalent to arguing over the ‘parenting time’ of a butter knife. In the eyes of the law, the end result will be the same. 

Justice Danyliuk, at paragraph 41 of his decision, reminded the parties that they would face uncertainty if the matter progressed, and that a mutually agreeable resolution should be attained if at all possible. His Honour went on to highlight that in the face of litigation, if the Court failed to reach a decision on where the dogs go, it is ultimately open to the Court to order that the property in question be sold and that the proceeds of the sale be split between the parties. His Honour concluded, at paragraph 42 of his decision, that the matter would not be decided on principles of child decision-making authority, formerly known as custody.

Justice Danyliuk however, eventually throws the parties a bone by shedding some light on what considerations if any he WOULD take into account, when making a decision: 

• His Honour outlined that he would evaluate the terms of any cohabitation agreement between the parties and how, if at all, it pertains to the property: AND
• His Honour would consider any factual determinations available relating to how the property was acquired, and who cared for the property both during and after the relationship. 

TAKE-AWAYS FROM COURT DECISION ON PETS 

What can we take away from this case? When it comes to Buddy the conclusion is clear: dogs are property – to be governed by the law of property – with consideration of the relevant factors specific to the case at bar.

Although these issues have been deemed justiciable by Court of Queen’s Bench for Saskatchewan, parties are to be strongly discouraged from bringing these matters to Court. As is the case with most family law related issues; amicable resolution, wherever possible, is the ideal – otherwise you might just end up chasing your own tail.  

Gelman & Associates has lawyers, including Anmol Kataruka, that have successfully obtained an Order declaring ownership of a pet via Motion on behalf of a client. Please consider contacting our firm today at 1-844-769-0737 for a free legal consultation. 

DISCLAIMER

This article contains legal information, not legal advice. Should you need legal advice with respect to the unique facts of your matter, please contact Gelman & Associates to book a free 30-minute consultation appointment.