Many people consider pets to be members of their family. When discussing the break-down of a family unit we may comment on who should have “custody” of the pets. However, the Canadian judiciary is reluctant to engage in such discussions. In Canadian courts pets are treated as property; little different from the dishes or the dining room table.

In Ontario, when married spouses separate their property is divided by ownership, with the party having the greater net family property owing an equalization payment to the party with the lesser net family property. Technically the value of the dogs, cats, turtles, iguanas, etc. are to be assigned to the column of one spouse or the other. The property of unmarried spouses remains divided by ownership, such that if either party wishes to make a claim to the other’s property he or she will be required to do so by making ‘trust claims’. Should Fido be owned by the other party, a common law spouse may be required to bring a constructive or resulting trust to get an interest in him.

However, determining who “owns” the family pet can be tricky. Judges may consider who purchased the pet, if the pet was brought into the relationship by one party or the other, if the pet was gifted from one spouse to the other, or from a third party, who has possession of the pet following the breakdown of the relationship, if there were any agreements regarding the pet’s ownership, and so on.

There is an often acknowledged absurdity to treating pets strictly as property. You cannot divide a pet and it may not be at all appropriate to sell a pet and divide the proceeds.

Some judges will in fact consider which party has been more responsible for the care of the pet, or who is the more capable pet-parent. If the separating spouses have children the judge is likely to consider if it is in the children’s best interests for the pets to remain with them.

In recent years an increasing number of Applications are being made for custody or access to pets. Ontario courts are responding by refusing to take jurisdiction of the matter or otherwise dismissing such cases. In doing so they often reference scarce court resources and the need to keep parties’ costs proportionate to the merits of the case.

Should separating spouses decide to enter into their own Separation Agreement rather than proceed to court, they may treat the pets more creatively. The parties may determine who will have primary care of Fido, an access schedule, and perhaps even some form of financial support payment.

As long as the parties follow the terms of their Agreement no one will question treatment of the pet as more than property. The issue arises with regard to the enforcement of such agreements. Should one party or the other choose not to follow the Agreement, the aggrieved party can turn to the courts for redress on the basis of contract law. However, he or she will not be able to use some of the more useful ‘tools’ available to enforce terms related to custody and support of children. There is no Hague Convention on abduction of pets. There is no government agency who will assist in collecting and enforcement support for a pet.

Most people find the loss of a cherished pet through death, or after a separation, to be very difficult. Whether the law could ever fully recognize the importance and significance of your relationship with your pet may be worth some reflection the next time you are walking your dog, cleaning the cat litter, or feeding your ferret.