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Posts from the ‘Pets’ Category

Russell Alexander Collaborative Family Lawyers’ First Annual Holiday Toy Drive

Poster for Russell Alexander Collaborative Family Lawyers' Toy Drive

 

Russell Alexander Collaborative Family Lawyers are pleased to announce the start of their First Annual Holiday Toy Drive. This year the drive will be supporting Bethesda House located in the Durham Region and A Place Called Home located in The City of Kawartha Lakes.

New, unwrapped gift donations can be made in the Brooklin office for the Bethesda House. They have informed us of the lack of gifts for children 13-17 years of age. Some gift suggestions for them include:

  • Sports equipment
  • Art supplies
  • Games
  • Movie passes and gift cards
  • Purses and backpacks
  • Make-up, lotion, perfume
  • Hats and scarves

The Lindsay office is accepting new, unwrapped gifts to be donated for A Place Called Home. There is no recommended age for donations for this organization.

If you wish to donate to the toy drive this year, it will be running from November 1, 2018 through to December 7, 2018. You may drop by with your donation in the Brooklin or Lindsay office any time between 9:00 a.m. and 5:00 p.m. on Monday to Friday. For further details, feel free to give our office a call at 905-655-6335.

Pets and Break-ups:  Is “Pet Custody” the Answer?

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Pets and Break-ups:  Is “Pet Custody” the Answer?

To some, it may seem trivial, and far down the list of items that a separating or divorcing couple should concern themselves with.  But for others, the Newfoundland Court of Appeal’s recent ruling will help to clarify a legal question that has vexed courts across the country:

Who gets custody of a pet, when partners split up?  And what if one partner bought the pet, but the other spent more time caring for it?

In Baker v Harmina, the Appeal Court framed the particular facts of the case this way:

Mya is a cross between a Bernese mountain dog and a poodle.  For nearly two years she was treated as a family member by David Baker and Kelsey Harmina.  Now they have split up, and this case is about who gets to keep her.

Mya came to Newfoundland in October 2014 from a kennel in Ontario.  She was greeted at the airport by Ms. Harmina.  Mr. Baker was in Alberta, where he worked 14 days out of every 21.  When he was out of town Ms. Harmina kept the dog; when he was in town, he took it.

Even though the man paid for the dog, the woman spent more time with it and was responsible for most of its care.  So when they broke up in 2016, the woman kept the dog.   Although they discussed possibly sharing it, the arrangement did not work out (and indeed they ended up taking out Peace Bonds against each other).

Their dispute ended up in Small Claims Court, where the judge agreed with the man, concluding that he had bought the dog alone, and for himself only.  The woman appealed, insisting that the dog was jointly owned, as evidenced by her greater time spent with the dog, and the fact she paid for some pet-related expenses.  The first appeal court agreed with her and reversed the prior ruling;  it then set a “custody” schedule for the former couple to share the dog.

The man then brought a second appeal to the Newfoundland Court of Appeal. In evaluating whether the dog Mya was jointly-owned, that Court began its ruling this way:

In the eyes of the law a dog is an item of personal property.  That doesn’t mean dogs aren’t important. It means that when two people disagree about who should get a dog, the question is not who has the most affection for the dog or treats it better (so long as both parties treat the dog humanely).  The question is who owns it.

The two prior courts had approached the matter using different principles:  The Small Claims Court essentially used a traditional property-based approach, looking only at the fact that the man had paid for the dog, and that the woman had never been given or sold a legal interest in her.  In contrast, the first appeal court took a broader, more socially-based view, looking at the relationship between the former couple and the dog, rather than at the chain of ownership.  Both approaches found some support in other provinces (including Ontario).

However the less-traditional approach, which potentially recognized joint ownership, came with a host of potential problems:  Since a dog was “indivisible”, courts will often order that one joint owner buy out the other, or sell the dog and have the proceeds divided.

The Appeal Court said:

This response is unsatisfying to many people who keep dogs as pets. Neither Ms. Harmina nor Mr. Baker wants Mya for her financial value.  They want her as a pet and companion.  The Court can declare them joint owners, but it cannot jointly give them what they want.

The Appeal Court added that “the legal system is not well equipped to deal with the problems raised by joint ownership of dogs.”  It was also reluctant to endorse the “custody schedule” plan, since it could give rise to “a regularly scheduled opportunity for conflict [between the parties] that recurs for the rest of the dog’s life.”  The Court said:

Every time one party is late for the drop-off, or sick, or on vacation; when the dog is sick and vet bills need to be shared; when the dog is injured in one party’s care—there is an opportunity for conflict.  These opportunities can be particularly tempting for former romantic partners who end up in court litigating the ownership of a pet.

In the end, Newfoundland Court of Appeal concluded that the Small Claims Court had correctly relied on the more traditional approach that recognized the man’s ownership, stating:

While expanding the scope of joint ownership seems at first to be progressive and forward thinking, it is unlikely to be a kindness either for the parties or for the public. 

The Court of Appeal declared the man as the sole owner.

For the full text of the decision, see:

Baker v Harmina

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at RussellAlexander.com

Are “Pet Trusts” the Future of Canadian Law?

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Are “Pet Trusts” the Future of Canadian Law?

A little while ago I wrote about a recent B.C. pet-custody case called Brown v. Larochelle.  This case falls in neatly with other Canadian family law decisions that hold, almost universally, that in a separation or divorce pets are considered “property”, and are not subject to any sort of order that grants either party “custody”.

The Brown decision refers to an Ontario case, Coulthard v. Lawrence, in which the court was asked to settle a similar dispute between a separated couple over their two shared dogs, except in that scenario the Small Claims action was framed not as a “custody” battle, but rather a request to have the court decide which of the former partners gets the benefit of an order for possession of the beloved pets.

In making its decision, the court referred to a few scholarly articles and reputable studies, that set out some of the statistics relating to pet ownership in Canada, as it informs the resolution of such legal disputes:

It is clear from everything both parties have said, and what is in Ms. Coulthard’s affidavit, that the dogs were very much part of the household before the July 2011 termination of cohabitation, and then even after the Labour Day 2011 moving out of the Plaintiff’s house by Mr. Lawrence.

I explained to the parties that I was going to make reference to a publication, the publication really supports what both of them feel is the status of these dogs in their household. It’s a 2010 publication with the humourous title, “Fat Cats and Lucky Dogs”. It’s by two lawyers, one a Toronto lawyer, Barry Seltzer, and the second by a professor of Law at Texas Tech University School of Law, Professor Gerry Beyer. The book has received recognition internationally.

The authors at page 2 of the actual portion of the book, as opposed to the introduction, refer to a 2001 IPSOS-Reid study, Canadian study, it was called a pet ownership study, the formal name is “Paws and Claws”. And I quote from the text, but the text in turn is quoting from the IPSOS-Reid research: “Eight in ten of the pet owners … (83%) consider their pet to be a family member; only 15 percent said they love their pet as a pet rather than as a family member. This perception of the pet as family translates into ‘parental’ behavior for many pet owners: seven in ten (69%) pet owners allow their pets to sleep on their beds and six in ten have their pet’s pictures in their wallets or on display with other family photos. Almost all pet owners (98%) admit to talking to their pets.”

The court went on to quote text passages referring to the legal concept of “pet trusts”, under which money his held in trust to be used to provide for the care of any pets alive during the lifetime of the person setting up the trust.  Although the concept is not widely-recognized in Canada, it does have some acceptance in U.S. law.  As the court explained:

I am referring to a statement made in the text, in the introduction. As I say, the book was published in 2010. And at XIII of the introduction, the coauthors write: “At the time of writing…” and this is 2010, “…about 40 states plus the District of Columbia recognize pet trusts in some form. As the demand for pet protection increases, however, other states will come on board.”

The status or recognition in a legal form of pets is indicated in appendix G of this book. It refers to what is known as the National Conference of Commissioners on Uniform State Laws. Lawyers who study law learn of the continuing ongoing basis in the American law of what’s called uniform legislation and uniform pronouncements of law. So at page 142 of the book it starts out, the heading is “Uniform Statutes on Pet Trusts”. “In the United States the National Conference of Commissioners on Uniform State Laws revised the country’s Uniform Probate Code in 1990. More than 300 lawyers, judges and law professors, selected by state government, make up the conference. Its main task is to propose legal statutes for uniform and model laws in specific subjects and help state legislatures put the statutes into law.”

The text then goes on to quote from sample codes drafted by the conference in 1990 and amended in 1993 and it says that: “Approximately 10 states have enacted…” the particular provisions, which they then quote.

And then page 143, under a section headed “Trusts for Care of Animals”, the authors point out: “Likewise, the section 408 of the Uniform Trust Code completed in 2000 provides that a ‘trust may be created to provide for the care of an animal alive during the settlor’s lifetime.’ Approximately twenty states (See Appendix H) have enacted this Code which contains the following pet trust provision…”

I’m not quoting what the actual uniform code trust provisions are, but simply to indicate how advanced American law has gone, to allow for the protection of animals, to elevate them in a way that inanimate personal property has no protection.

Although the court in Coulthard v. Lawrence does not specifically adopt the U.S. concept of pet trusts into the Ontario-based scenario on which it was asked to rule, it does consider the duality of the property-vs.-custody dichotomy:

Part of what I said to Mr. Lawrence during his very able submissions was that when he upset the, what I called, scales of balance by after several months revoking what had been the arrangement where there was the equal sharing of the dogs, he had actually tipped the scales against him by resorting to self-help, and that he did so because, in his understanding, he owned the dogs and he was better suited. I put it out to him that he was walking both sides of the street, that he wanted to consider the dogs as members of the household, as fully as the pet owners referred to in Mr. Seltzer and Professor Beyers text or book have stated is the practice of most pet owners, they’re not considered property, they’re considered family members, but what he was doing was depriving the dogs of Ms. Coulthard’s role in their lives.

To recognize pet trusts is an interesting approach to take, and one that arguably adds a practical approach to a difficult legal conundrum, given the unique nature and role of pets in most relationships and families.

For my pet-loving and non-pet-owning readers alike:  What are your thoughts?

For the full text of the decisions, see:

Coulthard v. Lawrence, 2011 CarswellOnt 15952, [2011] O.J. No. 6207

Brown v. Larochelle

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at RussellAlexander.com

Do Partnership Principles Apply to Deciding Who Gets the Dog in a Split?

Do Partnership Principles Apply to Deciding Who Gets the Dog in a Split?

The legal issue of who owns the beloved family pet after separation or divorce has been covered many times by the courts across the country.  As I reported previously on a case called Henderson v. Henderson, the Canadian position is clear: “a dog is a dog. At law it is property, a domesticated animal that is owned. At law it enjoys no familial rights.”

This established principle was applied recently in a B.C. case called Brown v. Larochelle – but with a unique spin: the court held that partnership principles could apply to guessing what the parties might have intended if they turned their mind to what would happen to Luna in the event they broke up.

The young couple lived together for a few years. After their relationship ended the woman brought a court proceeding to determine which of them should get to keep a 3-year-old Korean Jindo rescue dog named “Luna”.   Alternatively, she asked that Luna be shared on/week off basis, or else that the man repay her $475 representing her half of the $950 they had together paid to adopt her.   The man, in contrast, wanted to keep Luna himself.

The court described the lead-up to the dispute this way:

In September of 2015 the parties stopped living together with the [woman] moving to a new apartment that did not permit pets.  In June of 2016 the [woman] obtained permission from her landlady to have pets and contacted the [man] about sharing possession of Luna.

That has led to this litigation.  The [woman] says there was an agreement to share Luna when it became possible.

The [man] says he paid $2,500 to the [woman] when she moved out to adjust certain matters between them and he believed ownership of Luna was one of those matters.

Since September of 2015 the [man] has had virtually exclusive possession of Luna.  The [woman] did take her for some visits/walks some 5 or 6 times after moving out but has had no contact since some time before June of 2016.

After reviewing the Canadian law on the topic, the court confirmed that dogs are treated as property, and distilled the following additional principles from the jurisprudence:

What I extract from the collective wisdom of these cases and some others is as follows:

(a)  pets will not be treated in a manner such as children;

(b)  courts are unlikely to consider interim applications for pet possession;

(c)  Canadian Courts are unlikely to find that joint sharing or some form of constructive trust remedy is apt;

(d)  that pets are a variant of personal property;

The above being acknowledged it is also clear that in Canada there is a legal requirement that animals (and in particular dogs and cats) be treated “humanely” unlike any inanimate personal possession.

The court then considered the fact that the couple had acquired Luna together, in what was essentially a “partnership”:

In this case, Luna was acquired by the parties not individually by either one but rather as what legally might be characterized as a partnership or joint venture.

Basic partnership law provides for an equal division of assets on dissolution of the partnership.  Many partners make agreements as to how they will deal with assets if the partnership winds up.  Many, such as here, do not. …

Applying established partnership principles to the question of the responsibility for Luna post-split, the court added:

… Partnership law requires that partners deal with each other fairly and equitably.  One of the maxims of the law of equity is: “Equity presumes that to be done which ought to have been done”.  In the context of this case, and having seen and heard the parties, I can assume that if they had directed their minds at the time they acquired Luna or during their joint care of her to what would happen if they split-up they would have agreed that this decision would take into account the best interests of Luna and her humane treatment.

After noting some of the tendered evidence that the Jindo breed of dog requires “strong training, patience, and plenty of walks”, the court concluded that joint use of Luna would not be best for her, based on either her breed, or her individual characteristics.   Since it was evident that Luna had “cemented her bond” with the man since the couple’s split, the better decision was to leave her with him.

In the end – and having found no persuasive evidence that the $2,500 the man paid to the woman when they split up was intended to cover Luna in a sort of “property settlement” – the court found that the man was entitled to keep the dog but was required to pay the woman $475 plus minimal court costs.

For the full text of the decision, see:

Henderson v Henderson, 2016 SKQB 282 (CanLII)

At Russell Alexander Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

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Wife Gets Husband’s Cats and Dogs in the Divorce

Wife Gets Husband’s Cats and Dogs in the Divorce

Recently, an older case with an interesting issue came to my attention: Based on the underlying premise that family pets are property, can a court order pet custody to be transferred as part of a divorce?

In Grimalyuk v. Concelos, the couple lived together for three years, and then got married. About three months into the marriage, the husband started to get physically and emotionally abusive with the wife, and with her 18-year old son from another relationship. The husband assaulted the wife on several occasions, and at one point attempted to evict them both from the matrimonial home.

Eventually, the wife had the husband arrested and charged with death threats, and the police removed him bodily from the matrimonial home.   He entered into a Peace Bond agreeing to have no contact with the wife for a 12-month period, and agreeing to attend alcohol counselling.

Not surprisingly, at this point the wife decided the two-year marriage was over, and she successfully went to court to obtain a divorce.   (The court also agreed to extend the restraining order for another year, since the husband had been seen skulking around the wife’s property despite having been ordered not to).

Beyond that, there was only one property-related issue still to be dealt with in the divorce: It related to what should be done with the family pets.

As the court explained, wife’s request in this regard was straightforward:

Equalization of Property

The only property sought by [the wife] is legal ownership of two dogs and one cat that are legally owned by [the husband] but have been living with and cared for by [the wife] since the date of separation.

Without hesitation, the court ordered that the husband transfer legal ownership of the three pets to the wife immediately.

It goes to show you: While many people complaint that their divorces go very badly, this one “went to the dogs.”

For the full text of the decision, see:

Grimalyuk v. Concelos, 2007 CanLII 1325 (ON SC)

At Russell Alexander Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

Should Child Custody Principles Be Applied to Former Couple’s Dog?

Should Child Custody Principles Be Applied to Former Couple’s Dog?

About five years ago, I first wrote about divorces that include “pet custody” disputes. These feature animal-loving former couples who end fighting in court over custody and ownership of their once-shared pets. Often the first step in such cases is for the court to set the parties’ expectations straight on a threshold issue, namely whether either of them have the right to “custody” of a pet (like they would have with children from the relationship), or whether pets are merely considered family property subject to division, like their household furniture or other assets would be.

In the years since that first article, nothing has changed. Pet-lovers are still very fond of, or downright passionate about, their pets. Couples who split up still squabble over them. But from a legal standpoint the law is the same then as it was now: Canadian law does not regard pets as a member of the family, and child custody principles simply do not apply to these kinds of disputes.

In other words, under Canadian Family Law, pets are simply possessions.

This was reinforced in a recent Saskatchewan decision, involving a man and woman who had shared two dogs while living together. The man wanted to keep one dog, and was willing to allow the woman to choose which one. The woman wanted both dogs. Neither of them would budge, and the matter went before a court.

On the preliminary question of whether the dogs were to be treated as property, the court made no bones about it (pun intended):

Dogs are wonderful creatures. They are often highly intelligent, sensitive and active, and are our constant and faithful companions. Many dogs are treated as members of the family with whom they live.

But after all is said and done, a dog is a dog. At law it is property, a domesticated animal that is owned. At law it enjoys no familial rights.

The court went on:

I say without reservation that the prospect of treating pets as children would be treated holds absolutely no attraction for me. I say this cognizant that many dog owners, perhaps most of them, choose to treat the family dog not as property but as family. Certainly that is what these parties did. But that choice does not alter the law that pets are property. My present task is not to act with emotion or to validate the personal perspective of pet owners within the legal context. Rather, it is to interpret and then apply the law. And for legal purposes, there can be no doubt: Dogs are property.

Having made its legal approach clear, the court ultimately declined to make any interim order respecting the dogs, because the couple certainly had other personal property that would be dealt with and divided at a later trial. The court explained:

I strongly suspect these parties had other personal property, including household goods. Am I to make an order that one party have interim possession of (for example) the family butter knives but, due to a deep attachment to both butter and those knives, order that the other party have limited access to those knives for 1.5 hours per week to butter his or her toast? A somewhat ridiculous example, to be sure, but one that is raised in response to what I see as a somewhat ridiculous application.

And if that was not clear enough, the court added the following admonition to the particular couple, and to the broader public as well:

In a justice system that is incredibly busy, where delay has virtually become systemic, where there are cases involving child welfare and family matters that wait months for adjudication, these parties have chosen to throw this dispute into the mix. I am sure that to them, this is the most important matter. But it must be kept in perspective and measured against other matters, many of which inarguably are of more importance. … To consume scarce judicial resources with this matter is wasteful. In my view, such applications should be discouraged.

Do you think the court was correct? Should Canadian law recognize and address pet custody issues?

For the full text of the decision, see:

Henderson v Henderson, 2016 SKQB 282 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

Estate Planning for Reptile-Lovers: Who Inherits the Crocodiles?

Estate Planning for Reptile-Lovers: Who Inherits the Crocodiles?

An unusual Ontario case involving a man who owned almost 200 reptiles has highlighted the importance of making a Will.

Karel Fortyn, was a Welland, Ontario man who owned nearly 200 exotic reptiles.  Among them were two Orinoco crocodiles (kept in a tank with three-inch thick bulletproof glass), Namibian coral snakes, Ceylonese palm pit vipers, Bolivian lanceheads, Monitor lizards, Indian cobras, a Gila monster, a ball python, and a Taiwan beauty snake.  Karel was a true “character”:  he had an unbridled passion for exotic pets, set up a zoo for the public in his own house, and engaged in frequent legal battles with the city of Welland, which sought to enforce a by-law against keeping exotic creatures.

Karel’s passion became a pressing issue, however, when he died unexpectedly at the age of 52 from a massive stroke.  Unfortunately, Karel did not leave a Will.  This being the case, he had not named an Executor for his estate and left no directions as to how he wanted his estate divided.   More importantly, he gave no indication as to how he wanted his collection of exotic pets to be dealt with and cared for after his death.

Because Karel died intestate (i.e. without leaving a Will) his assets – including the reptiles – were subject to distribution according to the provisions of the Succession Law Reform Act, which essentially sets out a detailed hierarchy in terms of who is entitled to the assets and in what measure.    

In particular, the Act dictated that ownership of Karel’s reptiles would be awarded to his next-of-kin using the following formula:

1) If Karel was married with no children, then everything goes to his spouse.

2) If Karel had a spouse and children, then his spouse gets the first $200,000 of his estate, with the remainder being divided amongst the wife and any children (with proportions governed by how many children there are).

3) If Karel was not married, then everything gets divided equally amongst his children.

4) If Karel had no children, then his estate goes to his parents equally.

5) If his parents died before him, then Karel’s estate goes to his siblings equally.

6) If there are no siblings alive, then the estate goes to Karel’s nephews and nieces equally.

7) If there no nephews or nieces, then it goes to other relatives in a statutorily-defined order.

8 ) If there are no other next of kin, Karel’s estate goes to the Crown.

As it turns out, Karel was survived by only one sibling, a brother named Jan.   Still, the matter had to go to court over certain disputed issues between  Jan and the estate’s administrators.   Ultimately, after a six-week trial, full ownership of the reptiles was awarded to Jan who donated almost all of Karel’s cherished reptile collection portions to two Ontario reptile zoos.

Leaving aside the handy refresher on the law relating to intestacy, I’m just glad I don’t have a brother who’s into reptiles, because I certainly wouldn’t want to inherit almost 200 of them.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at  www.RussellAlexander.com

Who Gets to Keep Fluffy?

Who Gets to Keep Fluffy?

The details surrounding separation and divorce are always difficult: there must be decisions made on who gets the custody of any children, how any treasured family mementos must be divided, and how everyday items should be split evenly and fairly between the separating partners.

In addition to these more routine issues, the question of who gets to keep the dogs, cats and other family pets can also arise and – depending on the bond between owner and pet – can be as emotional and difficult as a child custody dispute.

So how does the law view pet custody? And how do courts deal with disputes about it?

Traditionally, from an Ontario family law perspective pets are simply viewed as possessions. As such, they are divided by the court in the usual course, after a determination of all the factors relevant to the equal sharing of assets between the parties. And – as with the task of splitting any kind of joint property – this means that the dispute can quickly become contentious. One of the earlier Ontario decisions to illustrate this was from 1983: In Torok v. Torok, the court described the case in these terms:

“The issue involved essentially revolves around two cats, otherwise known as ‘Bogey’ and ‘J.R.’, and from a short review of the voluminous file, it obviously appears that the spouses herein, not having had any children, are behaving in a most vindictive way each to the other regarding the custody and access of these feline substitutes. Presently, I believe a motion is immediately pending, varying a judge’s order of custody to the wife, the husband moving against the wife for custody of the cats as I understand it.”

Although there is no record of the court making a final decision on cat custody, the reported case involved the wife’s application for an order requiring a witness, who was a psychologist, to answer certain questions relating the husband’s state of mind. Apparently the husband considered the cats to be his “surrogate children”, and the custody dispute, together with the possibility that the cats would not be living with him, had apparently led the husband into a state of emotional upset.

More recently, in Grimalyuk v. Concelos the Ontario court dealt only briefly with the question of custody of the couple’s pets, as a routine matter as part of its consideration of the equalization of property. The court simply said:

“The only property sought by Ms. Grimalyuk is legal ownership of two dogs and one cat that are legally owned by Mr. Concelos but have been living with and cared for by Ms. Grimalyuk since the date of separation. I order that Mr. Concelos transfer legal ownership of these three pets to Ms. Grimalyuk forthwith”

On the other hand, some courts are not quite so amenable to hearing pet custody disputes, concluding that they are a waste of the court’s precious time and resources. In the Ontario Court of Appeal decision in Warnica v. Gering, for example, the Family Court Judge who had presided over the case conference had declined make an order for shared joint custody of a pet dog named “Tuxedo”. Officially, the reason was that under the Family Law Rules he lacked jurisdiction to decide the matter because the parties were found only to have been “dating”, not living together. (The Family Court only has jurisdiction if the claim involving cohabiting spouses.) On appeal, the Ontario Court of Appeal agreed with the Family Court judge, but added:

“In his reasons, the judge alluded to … the Family Rules, which allows the Family Court to dismiss or suspend a case because “the case is a waste of time, a nuisance or an abuse of the court’s process.” While he did not rely on that rule, his reasons make clear that he regarded the case as a waste of the Family Court’s time.

We agree and on the basis of the trial judge’s findings we would dismiss the claim …”

On the other hand, in that same year a more patient and didactic court in Newfoundland took an entirely different approach. In the 2005 decision in Simmonds v. Simmonds, the court considered the custody of a dog, and said:

“The dog caused me more of a problem and I was driven back to ancient sources, as will appear shortly, in analyzing the issue. The phrase “matrimonial assets” is defined in paragraph 18(1)(c) of the Family Law Act as including “… all real and personal property acquired by either or both spouses during the marriage, with the exception of …” None of the exceptions are relevant to this discussion”.

Personal property includes all property other than land, an interest in land or anything attached to it. Black’s Law Dictionary (6th Edition) divides personal property into (1) corporeal personal property, which includes movable and tangible things, such as animals, furniture, merchandise, etc.; and, (2) incorporeal personal property, which consists of such things as rights in personal annuities, stocks, shares, patents, and copyrights. (Underlining mine).

Halsbury’s Laws of England (3rd Edition) says that domestic animals, like other personal and movable chattels, are the subject of absolute property. The owner could maintain trover [an ancient remedy to recover the value of personal chattels wrongfully converted by another to his own use] for them, and retained his property in them if they strayed or were lost. Curiously enough a dog, though a domestic animal, was not the subject of larceny [theft] at common law. This was thought so because of the baseness of a dog’s nature but was more likely because the ancient punishment for felony [a crime of a grave or serious nature]6 was often quite extreme. The misperception of man’s “best friend” was not rectified by statute7 in England until 1916 but the harsh opinion about dogs had disappeared from popular thinking long before the legislature acted8.

The dog in this case is a Labrador retriever that the Applicant bought in 1999 for $50. The dog lived with the parties while they were together and moved to Canning’s Cove with the Applicant after they separated and then to Sunnyside when he moved there to the house that he shares with his new partner now. The Applicant has been responsible for the dog in the interim and has paid the costs of its maintenance and care. I am sure that both parties and their children have become quite attached to the animal but the issue has been put and it must be resolved.

The dog is a matrimonial asset but it is, without being facetious, indivisible. The Applicant has had that dog continuously since separation and may retain it. The Applicant shall pay an amount up to $50, which I am told was the cost of the present dog, for another dog of the same or another breed satisfactory to the Respondent, if she requires it.”

Notwithstanding the fact that courts are sometimes willing to resolve pet custody disputes, it is probably best for separating couples to spare the cost and aggravation by coming to terms on their own, with the help of their lawyers. At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit www.RussellAlexander.com

For the full text of the decisions, see:

Torok v. Torok (1983), 44 O.R. (2d) 118 (S.C.J. (Master))

Grimalyuk v. Concelos, [2007] O.J. No. 214 (S.C.J.)  http://bit.ly/oDnsXS

Warnica v. Gering, [2005] O.J. No. 3655 (C.A.) http://bit.ly/rfXJTD

Simmonds v. Simmonds, [2005] N.J. No. 144