Who Gets The Dog? Navigating Emotional Bonds and Legal Boundaries

BY SOMYA GROVER, ASSOCIATE LAWYER

When relationships come to an end, the division of assets can be a contentious issue, especially when it comes to our four-legged furry friends. 

In our homes, pets are often viewed as family members, rather than as assets or objects to be divided. In Ontario, however, the issue of pet custody is treated differently from that of child custody, since the courts typically categorize pets as personal property rather than family members. 

This may appear to simplify the legal status of pets, but it can make the process of determining who gets to keep them after family breakdown emotionally challenging and often, disappointing. 

Understanding how Ontario courts handle pet custody can help owners navigate these difficult decisions.  

As Ontario courts generally treat pets as personal property, they are subject to the same division principles as any other family assets. This approach was clearly outlined in the landmark case of Warnica v. Gering, 2004, in which Justice Timms ruled that pets do not have analogous legal status to children, and are to be divided as property. This decision set a precedent that has influenced subsequent cases, making it clear that emotional attachment and caregiving roles do not outweigh ownership rights established through purchase or adoption.  

Despite the clarity of this legal framework, disputes over dog custody often arise due to the emotional bonds that people form with their dogs. In such cases, the courts may consider factors such as who originally purchased the pet, who has been primarily responsible for its care, and, of course, weight is given to any written agreements between the parties. This point was further endorsed by Justice Baltman in the 2021 case of Coates v. Dickson, in which she emphasized the importance of documented ownership and care responsibilities.  

While Ontario adheres to a strict property-based approach, other provinces in Canada have begun to recognize the unique status of pets in family dynamics. 

British Columbia, for example, recently introduced groundbreaking amendments to its Family Law Act regarding pet custody in January of 2024. Under the new provisions, pets are now recognized as family members as opposed to possessions, and courts must consider the best interests of the pet(s), including factors such as the care each party provided, any history of family violence, and the willingness and ability of each party to meet the pet’s basic needs. 

Legislation was also enacted in Quebec in 2015, recognizing animals as sentient beings. These shifts highlight a growing trend towards acknowledging the special place pets hold in the lives of Canadian families.  

While pet custody in Ontario is governed by property law principles, there is increasing legal recognition in Canada of pets as living, breathing members of a family unit.  This indicates a potential shift towards a more holistic approach to pet custody, as the law in other Provinces begins to consider the custody of pets based on factors more complex and humane than mere clinical measures of property and ownership.

As societal views on pets continue to evolve, it will be interesting to see if Ontario’s legal framework adapts to reflect these changes. After all, our furry friends deserve to be seen as more than just property - they deserve to be recognized as living beings and treated with the same care and consideration they provide us. 

- Somya Grover, Toronto

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