Summary of the novel approach
The most recent cases dealing with pets on separation seem to affirm a broader approach in deciding who gets the family pet, over and above the traditional argument, "I paid for the dog so I get to keep the dog". This represents a shift in the law. However, the basic premise still exists, “[d]isputes between people claiming the right to possess an animal are determined on the basis of ownership (or agreements as to ownership), not on the basis of the best interests of the animal.”
As recently as July 14, 2021, the Court has reaffirmed a non-exhaustive list of numerous factors to be considered when dealing with the family pet. From there, the Court will use their discretion in deciding who the pet should live with. These factors include:
a. Whether the animal was owned or possessed by one of the people before the relationship began;
b. Any express or implied agreement as to ownership, made either at the time the animal was acquired or after;
c. The nature of the relationship between the people contesting ownership at the time the animal was first acquired;
d. Who purchased and/or raised the animal;
e. Who exercised care and control of the animal;
f. Who bore the burden of the care and comfort of the animal;
g. Who paid for the expenses related to the animal's upkeep;
h. Whether at any point the animal was gifted by the original owner to the other person;
i. What happened to the animal after the relationship between the litigants changed;
j. Any other indicia of ownership, or evidence of agreement relevant to who has or should have the ownership of the animal.
Of course, absent a Court of Appeal decision, the law is up in the air. But this test reflects something that pet owners might consider a little fairer.
Coates v Dickson, 2021 ONSC 992
There were two pets in question, namely, two black Labrador retrievers, Jazz and Jetta. As the Court notes, “[n]ow the humans have parted ways, and this case is about who gets to keep the dogs.” Further, “the question is who owns the creature.”
The parties were separated but living in the matrimonial home together. Upon seeking to go separate ways, the Court heard this motion to figure out where the dogs were to go.
The Court remarked on the two approaches to dealing with pets. There’s the traditional approach found in King v Mann, whereby the case turns on who paid for the dog. Second. “The broader, more contemporary approach looks at the relationship between the parties and the dog.” The Court then pulled the factors considered in a Small Claims decision in Nova Scotia, (MacDonald v Pearl, 2017 NSSM 5). These factors are outlined above. The Court did not that this list is not exhaustive, and there may be other relevant factors depending on the case.
In the current case, the Court found the parties jointly owned the dogs, having regard to:
a. Both dogs were purchased by the parties during their marriage as their family dogs;
b. Although they disagree on the amounts of their respective contributions, both parties have invested financially in the purchase and upkeep of the dogs, including food and veterinary expenses;
c. While each spouse claims to be the primary caregiver for the dogs, both have made significant contributions of time and energy toward their welfare and upkeep, e.g. Mr. Coates has done much of the dog walking while Ms. Dickson has attended to most of the veterinary care;
d. Both parties are listed in official documents connected to the dogs: Ms. Dickson is solely listed as the registered owner at the dogs' veterinarian, and is the sole registered owner with the City of Brampton Animal Services, while Mr. Coates is listed as the owner of Jazz on the registration certificate issued by the Canadian Kennel Club; and,
e. Both spouses have suffered mental and emotional stress as a result of the separation and believe that the dogs will be therapeutic to their recovery.
The Court divvied up the dogs and ordered one to live with the Applicant and the other to live with the Respondent. This is a convenient solution that obviously cannot be applied when only one dog is involved.
Duboff v Simpson, 2021 ONSC 4970
The pet in question was a Boxer breed dog, Layla. After the separation of the couple, Layla lived with the Applicant. For the next several months, the Applicant would leave Layla at the Respondent’s house for “babysitting” when he was not able to look after her. However, the parties became non-amicable towards each other shortly thereafter, when the Applicant began a relationship with a new person. The Respondent was no longer able to look after or see Layla.
Five months later, the Respondent saw Layla being walked down the street by a person she had never seen before—the Applicant’s new girlfriend. The Respondent proceeded to confront this individual and took Layla away. The Applicant commenced this proceeding shortly after.
In the analysis, the Court affirmed that pets are personal property and the relevant question is that of ownership. The “traditional” approach to this question was raised—focusing primarily on who purchased the dog. The Court also remarked on the approach taken in Coates, and the numerous factors to be considered.
Under either approach, the Applicant was said to be the owner of the dog. In support of this, communications revealed that the parties intended for the Applicant to be primarily responsible for the dog. In addition, the Respondent worked 12-hour days and had little time to take care of Layla. In addition, the Applicant was the one who actually adopted Layla. He also provided all the dogs’ records—on these records, only the Applicant was listed as the owner. The Applicant also paid the expenses for the dog, to the tune of $8,706. Finally, the Applicant was said to be the “primary caregiver” because he was working from home with the dog.
As a result of the aforementioned, the Court found that certain messages between the parties, that the Respondent was using for her case, such as when the Applicant told the Respondent, “look what I got you [referring to the dog]”, made little impact on the decision. Interestingly, the Court found that in the absence of it being a birthday or anniversary, it would make little sense for a person wanting a dog to immediately gift it away to someone—thus, the dog was a family dog.
To put the nail in the coffin, the Court concluded that if the Respondent was serious about trying to get Layla, she would have brought an Application right after the relationship ended or right after she was no longer able to see the dog. It was only after five months and upon the Respondent seeing Layla with the Applicant’s girlfriend, did the Respondent actually do anything at all.
Most notably, the Court ordered Layla to be returned to the Applicant.
Obvious takeaways? The law is now open to a more nuanced analysis of pet ownership, rather than simply appealing to whoever purchased the pet.
