Upon separation or divorce, a contentious issue is often which party gets to keep the family pet. Despite furry friends often being just as important to the family as children, Ontario’s courts have refused to make custody orders in respect of family pets.
Justice Timms in Warnica v Gering stated “Whether in the Family Court or otherwise, I do not believe that any court should be in the business of making custody orders for pets, disguised or otherwise… 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. 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.”
What can you do?
- Determine ownership
You can ask the court to determine ownership of the family pet. Evidence you would require to establish ownership include:
- proof of purchase,
- documentation from the vet with your name on it or;
- a breeder’s certificate.
- Prove the family pet was a gift
If the pet was a gift, you will need to prove that the pet was intended as a gift, such as testimony of a witness could show that it was a gift or you may be able to provide evidence of the transfer of ownership i.e. reference to the gift as yours in a card or another written communication e.g. “Merry Christmas, enjoy your new puppy.”
- Sale of the pet
Where parties truly cannot agree on the split or access of a family pet, one party may make an application to the court for the sale of the pet, with the proceeds of the sale being split equally between the parties. Of course, this would likely be the most distressing and least favourable option to both owners and the furry friend. The courts would likely take a dim view of such a request with the courts stating in Gardiner-Simpson v. Cross:
“In matrimonial cases, parties often agree to sell jointly owned assets (whether realty or personalty) and split the proceeds. The problem would take on a Solomonic quality, where splitting the asset (be it a dog or a child) destroys the thing for both of them. Selling the dog to an outsider would only double the pain.”
Recent case – Thorpe v Rinneard
In the recent case of Thorpe v Rinneard, the Ontario courts were presented with a warring couple fighting over the ownership of one of their two dogs. The couple had been together in an on and off relationship since 2014, residing in Mr. Thorpe’s property. In 2016, the plaintiff, Mr. Thorpe, purchased two dogs. Ms. Rinneard left the property on several occasions and lived elsewhere. Ms. Rinneard claimed that one dog was her property, having been gifted to her by Mr. Thorpe for her birthday. Mr. Thorpe made a motion for an interim order for recovery and possession of the dogs and an order granting leave for a writ of delivery for the dogs. Evidence was led that the dog resided with Mr. Thorpe’s residence, that the parties split veterinary bills and evidence of Ms. Rinneard’s maiden name being used for the dog.
The test that the Court relied on was Section 104 of the Courts of Justice Act which provides that the court may make such an order when a plaintiff alleges that property is unlawfully detained by the defendant. Rule 44.01(1) states that a plaintiff must provide an affidavit setting out
- a description of the property sufficient to make it readily identifiable i.e. the breed and type of animal;
- the value of the property i.e. evidenced by a receipt following purchase
- that the plaintiff is the owner or lawfully entitled to possession i.e. documentation from the vet, witness testimony, a breeders certificate or proof of purchase;
- that the property was unlawfully detained i.e. one party refusing to return a family pet that is owned by the other party; and,
- the facts and circumstances giving rise to the unlawful taking or detention i.e the specific facts of each case.
The court held that given Ms. Rinneard’s the lack of evidence that the dog was a gift and the doubt which was cast upon her ownership giver her sporadic residence with Mr. Thorpe and the dog, there was not enough evidence to satisfy the court of her ownership of the dog. The court ordered that the dog be returned to Mr. Thorpe until trial.
How can we assist?
In order to avoid litigation, the most sensible way to decide what happens to a family pet following a separation or divorce is to prepare a written separation agreement between the parties. This can avoid costly litigation, drawn out court proceedings and anxiety for owners and pets by agreeing in advance.
These agreements can be crafted to suit the needs and wishes of the parties, in as much or as little detail as required, discussing access, costs and the decision making powers. Our experienced family lawyer can assist parties to draft such agreements or commence litigation in respect of their family pets. Please contact us to arrange an initial consultation.
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