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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