Best Interests of the…..Feline? Cats, Custody and the Law of Ontario

December 5th, 2015 by

People love their pets. It is a simple proposition, yet one that manifests itself in the strangest of ways. From carting one’s dog around in a children’s stroller, to commissioning oil paintings of one’s feathered friends, the proverbial gamut has been run in how people show their affection for pets. That famed retailer Barney’s of New York has a pet accessories page illustrates this point.

It is not surprising then, that disputes over animals have spilled over into the Courts. In the context of matrimonial disputes, the Courts have been invited (one suspects unwillingly) to wade into the discussion of whether persons can claim custodial or access rights over a family pet. While this issue has made it to Court in at least three provinces, with one case making it to the Ontario Court of Appeal, it appears that the law is settled in this regard: pets are not children, and only children can be subject to custody and access orders. Courts have consistently held that pets are property, no different than their leash or designer dog carrier, and that there is no jurisdiction under family law statutes to make custodial orders for pets.

The leading case on this point in Ontario is Warnica v Gering. In that case, the parties had brought suit both claiming custody over Tuxedo, a chocolate lab. In a short, yet reasoned decision, the Court declined to hear the matter, finding that pets were not the proper subjects of custody proceedings. As Justice Timms noted:

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. To the extent that any of my colleagues may feel otherwise, I respectfully disagree. 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.

Finding that precious judicial resources and time could be better spent, the Court dismissed the application. Not taking Justice Timms’ comments to heart, the applicant appealed. In an even shorter judgment, the Court of Appeal dismissed the matter. While the Court was quick to dismiss a claim for custody over a pet, other Courts have not been so quick where the proceedings were couched in terms of property law, what Justice Timms referred to as the ‘business of making custody orders, disguised or otherwise.

In Kitchen v MacDonald, the British Columbia Provincial Court dealt with a claim for “… what amounts to a declaration of ownership in a border collie dog named Laddie […] and further for an order specifying possession time for each party of the dog.” The case made it to trial. If one has ever wondered what sort of evidence would be led at such a trial, wonder no more:
There is uncontroverted evidence that [the respondent] referred to [the claimant] as the dog’s ‘daddy’. There is an undated letter on file as well reporting to be from Laddie to ‘my daddy’, apparently following a break-up where [the respondent] writes on behalf of the dog that she is sorry she cannot make them a family. It suggests ways that he can come and see the dog while she is out of the house at work. It concludes by saying ‘I know there is no way mommy would ever keep you from seeing me – that’s just not the kind of mommy she is. She wants us to both be happy.’ There were also gifts and cards over the years addressed from the dog to his ‘daddy’.

Citing Warnica, the trial judge dismissed the claimant’s case. He found that by anthropomorphizing the dog, the claimant had created an expectation that “the dog was the child of both [parties].” However, the Court found that such did not create a legal interest in the dog, and that the dog remained the property of the party who had bought it. He declined to make an order for shared possession, which in reality would have looked like something of a custody and access arrangement.

In Ireland v Ireland, the Saskatchewan Court of Queen’s Bench was called upon to determine ownership of a dog. Once again, the Court found that family law principles were completely inapplicable to determining possession of a dog and that the issue was properly decided according to property law. As the Court concluded:

It must be stated that, as both counsel acknowledged, a dog is a dog. Any application of principles that the court might normally apply to the determination of custody of children are completely inapplicable to the disposition of a pet as family property. Any temptation to draw parallels between the court’s approach in this case to the principles applied to settle child custody disputes must be rejected.

From a review of these cases, it is apparent that Courts across the country have been reticent to impose family law principles on cases of family pets. While some may think that their pets are their children, the law does not agree. When it comes down to it, a dog, cat or parrot is no more or less property than a car or a wedding ring. Like any other property, a pet can become an issue in matrimonial litigation. To protect your interest in your feathered or furry friend, it may be prudent to seek the advice of a family law professional.

If you are engaged in a dispute about the ownership of a pet, or have questions about the division of property on dissolution of a marriage or relationship, contact the experienced family law team at Devry Smith Frank LLP.

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