Pets are clearly a part of the family and in fact sometimes even closer than family members. This is a reality. After separation, couples are able to divide so much of their property. But when it comes to a loving pet, tempers fly and eventually the matters reach the court for a hearing. So, who owns the dog?
Recently, in Franco v. Franco, 2024 ONSC 6436 (CanLII), <https://canlii.ca/t/k813b>, the Court ruled on this very complex, and emotional point.
Given the importance of this area, I am detailing a lot of what the judge has actually said from the Court case directly here. This is more so because there are very few cases dealing with pet ownership and separation.
In law, pets are considered a form of personal property in the law: Duboff v. Simpson, 2021 ONSC 4970, at para. 15.
The court noted that disputes over a dog’s ownership is determined on the basis of ownership and not on the basis of an animal’s best interests.
At the end of the day as the court noted at paragraph 23,
"It must be stated that, as both counsel acknowledged, a dog is a dog. Any application of principles that the court might 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 disputed must be rejected.
The court described two approaches in case low to determine the ownership of a dog. The traditional approach looks at which party purchased the dog and whether there are any discrete transactions where ownership changed:
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 second approach is an expanded one where the court considers not only purchase and registration but broader factors has developed, including, the following, at para 23:
a. Whether the animal was owned or possessed by one of the people before the relationship began;
b. Any express or implied agreement as to ownership, made either at the time the animal was acquired or after;
c. The nature of the relationship between the people contesting ownership at the time the animal was first acquired;
d. Who purchased and/or raised the animal;
e. Who exercised care and control of the animal;
f. Who bore the burden of the care and comfort of the animal;
g. Who paid for the expenses related to the animal’s upkeep;
h. Whether at any point the animal was gifted by the original owner to the other person;
i. What happened to the animal after the relationship between the litigants changed;
j. Any other indicia of ownership, or evidence of agreement relevant to who has or should have the ownership of the dog.
The Court said that although pets are often viewed by people as members of their family, in law they are personal property much like other chattels, even when purchased during the course of a relationship. In that regard, they are an indivisible piece of property. The relevant question is ownership, not who wants the dog more or who has more love and affection for the dog, or even who would be the best owner.
The Court found that the wife is the lawful owner of Meg, the dog for the following reasons:
a. It is not disputed that the wife connected the husband with the breeder in Brazil and they went together to meet with the breeder. It is disputed as to which of the parties picked Meg from the litter or named her.
b. The wife providing the following records which support her being the titled owner of Meg:
(i) The agreement of purchase and sale with Meg’s breeder, signed in 2014, which lists the wife as Meg’s owner.
(ii) The original microchip registration for Meg in Brazil, which lists the wife as Meg’s owner.
(iii) The documentation from Meg’s veterinarian in Brazil which lists the wife as Meg’s owner.
(iv) The email confirmation from Meg’s veterinarian in Toronto confirming Meg’s appointment, demonstrating she was responsible for Meg’s care.
(v) A declaration from the breeder in Brazil confirming that Meg was the wife’s dog, purchased by the husband for the wife.
(vi) The letter from the dog’s groomer in Toronto confirming that the wife is Meg’s owner and the person they dealt with to organize Meg’s grooming.
(vii) A copy of the message the husband sent the wife on the day he withheld Meg on November 20, 2023, on WhatsApp which demonstrates that the husband was unilaterally declaring his “ownership” of Meg since the wife had retained a family law lawyer.
Analysis:
Most couples when they get married or cohabit do not expect or plan to separate in a determined amount of time. Sometimes separation happens quickly or can take time. It is difficult to think through all of the issues that need to be dealt with for a separation including ownership of a loved and loving pet.
The above principles show the time, effort and detail analysis that needs to be done in dealing with owner of a pet between one loving couple towards their still loving dog!
At Shankar law, we are happy to do the analysis with and for you, to build up your case and to let you know transparently on a balance of probabilities as to the strengths and weaknesses of your case. We welcome you to our offices in Port Elgin, Owen Sound, Kincardine, Wiarton or virtually from anywhere in Ontario. We are always here to help you with your Family Law, Criminal Law or Real Estate matters.
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