Under British Columbia’s recently-changed family law, a judge can now make custody decisions of a pet in a divorce or separation based on the animal’s relationship to the family.
In a recent landmark ruling, the judge in the first case to be heard following changes to the province’s Family Law Act, ruled a pair of ex-partners would have joint custody of Stella the dog.
Previously, ownership of pets in the province was determined similar to how ownership of property is, but now B.C. courts are taking several different factors into consideration: a person’s ability and desire to care for an animal, relationships between children and the pet and risks of animal cruelty.
In Ontario, however, the courts continue to treat pets like property in break-ups. Could a similar change come here? Daniel Walker, a managing partner at Bobila Walker Law who practises in civil litigation and complex family law matters, weighed in.
How does Ontario law deal with pets in divorce and separation?
“Currently in Ontario … if you’ve got the dog, and you can prove that you purchased the dog, the dog is technically yours — irrespective of who took care of the dog and who has a strong emotional attachment,” Walker said. “That’s the general law.”
There’s no “custody and access” law for pets in the province, he explained.
That’s because pets aren’t treated like children or family members under the law, and the law hasn’t created a specific provision for them. In B.C., animals are now treated as “companions,” he noted.
In Ontario, the law would pose similar questions about a pet that it would pose about a “Rolex watch or a car,” Walker said, something that can be very challenging for pet owners to grapple with.
“I have a lot of clients who go through very difficult divorces; everything settles, but one thing that they can’t agree (on is) who should get the family dog.”
One recent estate case exemplified the difficulties — and limits — courts face when trying to answer the question of who gets to keep a pet.
While viewing dog ownership through the lens of property, Walker said, the court in the estate case “considered the best interest of the animal, albeit briefly, and could not come to a conclusion.”
He added there are a “multitude of factors” courts have started to use in family law, as well as estate disputes and civil claims.
In one family law case, a court “noted that a dog is ‘indivisible’ and cannot simply be divided between the parties,” Walker said. “If a dog is jointly owned, like with other properties, the court may order one co-owner to buy the other out and pay compensation. It can also order the dog to be sold and the proceeds divided.”
How else can Ontario pet owners deal with pet “custody” battles?
The best thing pet owners can do during a break up is be co-operative and try to come to an agreement outside of court, Walker said, noting that’s also the most cost-effective option.
They could also hire a mediator and settle the decision as they would with property, he added, although they “can pretty much agree to anything in a mediation,” including taking turns caring for the pet.
Under more complex circumstances — say one pet owner took the animal against the wishes of the other and it’s not obvious who the pet should belong to — the other pet owner could sue. But starting a lawsuit could cost between $3,000 and $5,000 at minimum, something many people wouldn’t be willing or able to pay, Walker said.
In certain scenarios, police could get involved by treating the case like a theft. This could be possible if, for example, the person taking the pet was caught on video sneaking into someone’s home using keys they should have returned, Walker said.
“But seldom do we have cases that are clear cut,” he added.
Have Ontario courts dealt with pet ownership cases?
The last decade or so has seen more litigation on this issue, Walker said, as societal norms change and more people become pet owners.
It’s perhaps happening even more in the last few years since the pandemic started; Walker said he’s aware of some people in the dog breeding industry who earned between $300,000 and $500,000 in a pandemic year.
“So more court cases have come out from other provinces where judges have said, ‘This is not just a property. Dogs are companions, and there needs to be some sort of special analysis when you deal with these issues.’”
Could Ontario law change to be more like the one in B.C.?
While many animal lovers will see the B.C. development as a positive, it’s possible that in Ontario, “judges generally don’t want to deal with these issues” because the courts are already severely backlogged with caseloads, Walker said.
“The litigation around animal law continues to be evolving, and is likely going to keep on evolving, but I think courts and politicians are going to be reluctant to expand this law out of fear of potentially causing more litigation,” he said.
Alternatively, it’s possible that the new law in B.C. will help people resolve their issues faster, Walker said, something that remains to be seen.
“British Columbia is going to be like a test province,” he said.
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