After the Divorce: Who Gets to Keep “Jazz” and “Jetta”, the Beloved Family Pets?

After the Divorce: Who Gets to Keep “Jazz” and “Jetta”, the Beloved Family Pets?

As illustrated in our prior Blog titled “Pets and Break-ups:  Is ‘Pet Custody’ the Answer?”, Canadian courts tend to view pets as “personal property”.  This means that when spouses or romantic partners decide to part ways and end up in court to sort out their legal affairs, one of the issues for the court’s determination might be to decide which of them gets to keep the cherished family pet, much as it would decide who gets to keep a favourite living room couch.

Although this approach may seem inconceivable to the legions of Canadians who have a deep, emotional, and indescribable bond with their pets – one that some even liken to the bond with a child – it’s a practical (and less sentimental) approach that is well-demonstrated in a recent Ontario decision in Coates v. Dickson.

The former spouses had split acrimoniously after four years together, but had managed to resolve all of their disputes except for one:  Who gets to keep the two Labrador Retriever dogs they shared, named “Jazz” and “Jetta”? The court was accordingly asked to decide.

After confirming that pets are uniformly considered property for Family Law purposes in Ontario, the court noted there are nonetheless two different, established approaches to deciding who gets to keep pets like Jazz and Jetta in these situations:

1. The more traditional approach, which considers who paid for the dogs (regardless of who paid for pet care and maintenance); and
2. The broader, more contemporary approach, that looks at the relationship between the former spouses and the two dogs.

As applied to the facts of the case, the court listed the following higher-level factors and principles that had to be applied when making its decision:

1. Under Ontario law, animals (including dogs, cats, birds, horses, etc.) are considered to be personal property;
2. The dispute over the possession of Jazz and Jetta must be determined based on ownership (or agreements as to ownership), not on what is in the “best interests” of the dogs;
3. The ownership (and possession) of the dogs is a question of law to be determined on the facts.

Next, since these spouses contested the two dogs’ ownership, the court had to consider these additional factors as well:

1. Whether one of the spouses already owned Jazz and/or Jetta before their relationship began;
2. Whether the couple had any express or implied agreement as to their ownership, either when they bought or acquired the dogs or any time after;
3. The nature of the spouses’ relationship at the time Jazz and Jetta were first acquired;
4. Who purchased and/or raised the dogs;
5. Who exercised care and control of them;
6. Who bore the burden of their care and comfort;
7. Who paid for the expenses related to Jazz and Jetta’s upkeep;
8. Whether at any point one of the spouses gifted one or both dogs to the other;
9. What happened to the dogs after the spouses’ relationship changed; and
10. Any other indicators of ownership (including evidence of agreements) that is relevant to who has or should have ownership of the dogs.

The court admitted that making rulings on pet ownership is still more nuanced and complex than determining who owns other types of physical property – Russell Alexander, Founder & Senior Partner

Even with this list in mind, the court admitted that making rulings on pet ownership is still more nuanced and complex than determining who owns other types of physical property.  However, the court took what it called an “expansive, holistic view” of human behaviour in relationship to their pets.

Looking at all the evidence, the court ultimately ruled that in this case Jazz and Jetta were jointly owned by the couple, and that they split the related chores fairly evenly.  This meant that the court was at liberty to decide how each of the two dogs should be dealt with.  Although in a “perfect world” they could remain together, this situation called for a compromise which would see Jazz going to live with the wife, and Jetta going to live with the husband.   The court justified this allocation by noting that Jazz was purchased as a watchdog after the couple had been the victims of a home invasion, and that the wife especially cherished Jazz’s protective qualities.

For the full text of the decision, see:

Coates v. Dickson, 2021 ONSC 992