Compassion for pets and owners due in Ontario divorce law following B.C. changes | Barry Nussbaum

Law360 Canada (July 16, 2024, 1:55 PM EDT) --

Barry Nussbaum

Summer is here, and down at Harbourfront, Torontonians can be seen walking their dogs — or, for the more pampered poodles, being pushed around in strollers. 

Dogs are man’s best friends, and most pet owners would tell you that they consider their pets part of the family (be it dogs, cats, frogs or any animal that people keep as pets). Alas, in the unfortunate event of a divorce, these furry friends are treated no differently from your living room TV.

In Ontario, pets are considered “property” in a divorce and are not dealt with in the same way as child custody. That is, the pet’s best interests are not the primary consideration when determining ownership.

Two approaches to pet ownership have been recognized in Coates v. Dickson, 2021 ONSC 992. The first is a more traditional, narrow approach based on who paid for the care and maintenance of the pet (paying vet bills, purchasing food, walking them, etc.) (see King v. Mann, 2020 ONSC 108; Warnica v. Gering, [2004] O.J. No. 5396).

Another approach considers the relationship between the parties and the pet. A list of considerations was summarized in MacDonald v. Pearl, 2017 NSSM 5, to determine ownership, which includes other considerations such as who purchased and/or raised the animal, who exercised care and control of the animal, who bore the burden of the care and comfort of the animal, and any express or implied agreement as to ownership.

Despite what the law says, there is (thankfully) some general recognition that pets are not entirely considered in the same way as mere property. For example, in the Newfoundland case of Baker v. Harmina, 2018 NLCA 15 (considered at paras. 11-15 in Coates v. Dickson), Justice Lois Hoegg stated in dissent that:

I am of the view that the ownership of Mya 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.

However, it still seems off-putting that the ownership of a sentient being is determined in strictly monetary terms, i.e., who paid for what.

British Columbia made a groundbreaking amendment to its Family Law Act earlier this year, reclassifying pets as “companion animals.” The court may make an order declaring ownership or right of possession to companion animals, and in doing so, must consider a list of factors including:

1. the circumstances in which the companion animal was acquired;
2. the extent to which each spouse cared for the companion animal;
3. any history of family violence;
4. the risk of family violence;
5. a spouse’s cruelty, or threat of cruelty, toward an animal;
6. the relationship that a child has with the companion animal;
7. the willingness and ability of each spouse to care for the basic needs of the companion animal; and
8. any other circumstances the court considers relevant.

Notably, this list of factors makes little reference to monetary indicators. Questions like who bought the pet and who paid for visits to the vet only form a small part of the court’s consideration. What’s emphasized is the relationship between the pet and each of the parties.

The first case to come before the B.C. court after this amendment was Bayat v. Mavedati, 2024 BCSC 619. In his judgment, Associate Justice Scott Nielsen remarked that “the recent amendments to the Family Law Act essentially put the ownership of a companion animal, such as Stella [the dog in this case], in the context of something that goes beyond ownership of a chattel. The sentience of the animal is recognized to the extent that the criteria reflect.” (at para. 14). The court went on to order that the parties share custody of Stella 50/50 on a week-on/week-off basis.

In this case, the claimant reportedly spent about $60,000 on litigation, which just goes to show how much people care for their pets — much more than a mere piece of furniture. The change in legislation, therefore, more accurately reflects the close relationships that people develop with their pets.

Given the numerous applications concerning pet custody coming before the Ontario courts, it is high time that Ontario followed in B.C.’s footsteps and reformed its divorce law accordingly.

Barry Nussbaum of Nussbaum Law is a respected member of both the Ontario and New York bars. With over 17 years of experience, Nussbaum is a successful and proven advocate for family and divorce clients. With his broad and focused experience in family law, he provides strategic and effective solutions for his clients. Nussbaum represents clients in all areas of family law, including divorce, child custody (decision-making), parenting time (access), child relocation and Hague Convention matters and support-related matters. While Nussbaum acts for clients on complex appeal matters, he is recognized for his “focus on the bottom line” and “narrowing the issues,” often resolving matters in mediation.

The opinions expressed are those of the author and do not reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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