Who Gets to Keep the Family Pets in a Divorce?

Mark Feigenbaum

In a recent Ontario case, the court canvassed the law surrounding ownership of family pets after a divorced husband and wife both sought exclusive possession of their two dogs.

Couple Goes to Court over Family Dogs

The husband and wife had cohabited since July 2016. They married in August 2018 and separated in October 2019, following which they continued to live in the matrimonial home while they sorted out their financial issues. During their relationship, they lived with their two black Labrador retrievers, Jazz and Jetta.

The couple had acquired Jazz in May 2017 as a guard dog, after an attempted home invasion. In 2018, they acquired Jetta. At the time of the hearing, Jazz was four years’ old and Jetta was three.

The couple brought a motion to the court wherein both spouses sought exclusive possession of the matrimonial home and of both dogs. Shortly before the hearing, the couple had agreed that the wife would move out of their home in May of 2021. However, they could not agree on where the dogs should live. Each spouse claimed ownership of both dogs. In the alternative, each sought one of the dogs, with both spouses preferring Jazz. 

Court Gives Each Spouse Possession of One Dog

The court began by setting out the applicable legal framework, stating:

“However much we love our dogs, the law treats them as an item of personal property. The question is who owns the creature. 

That said, the case law reveals two different approaches to determining the ownership of pets. The more traditional, narrow approach turns on who paid for the dog…. That approach considers the care and maintenance of the dogs (paying vet bills, purchasing food, walking them, etc.) irrelevant to ownership….The broader, more contemporary approach looks at the relationship between the parties and the dog.” 

The court further noted that where two persons contest the ownership of an animal, the court will consider such factors as:

• Whether the animal was owned or possessed by one of the people before their relationship began;
• Any express or implied agreement as to ownership, made either at the time the animal was acquired or after;
• The nature of the relationship between the people contesting ownership at the time the animal was first acquired;
• 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;
• Who paid for the expenses related to the animal’s upkeep;
• Whether at any point the animal was gifted by the original owner to the other person;
• What happened to the animal after the relationship between the litigants changed; and 
• Any other indicia of ownership, or evidence of agreements, relevant to who has or should have ownership of the animal.

After reviewing relevant legal principles, the court endorsed the broader approach to determinations on the issue, stating: 

“Ownership of a dog is an investment that goes beyond the mere purchase price. It includes the care and maintenance that are an integral part of “owning” the dog. I agree … that separating the purchase price from the upkeep is both artificial and unfair. That is particularly so where, as here, there are two dogs in issue and, assuming the facts support joint ownership, they can be divided. Though in a perfect world dogs who co-reside would remain together, litigation, by definition, almost always involves some compromise.”

The court then reviewed the couple’s evidence and concluded that both dogs were jointly owned by the couple and both parties had been equally involved in looking after them. However, because the parties could not share or jointly maintain the dogs, the court held that the dogs had to be separated. 

In determining which party would keep which dog, the court concluded: 

“Regrettably as well, the parties cannot agree on how to divide the dogs. Each prefers Jazz, who was purchased in response to the attempted break-in of their home. As Jazz appears to have the protective qualities that are particularly important to [the wife], I find that Jazz should go to [the wife] and Jetta to [the husband].”

In the result, the court so ordered.

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At Feigenbaum Law, our goal is to help you move forward following the breakdown of a relationship while retaining as much financial stability as possible and ensuring your children are provided for. Mark Feigenbaum is able to counsel his clients on all potential risks that may result from a family law dispute, not just those related strictly to the breakdown of a marriage. Contact Mark online or call him at (416) 777-8433 or toll-free at (877) 275-4792 to book a consultation.