Pet Custody for the Rich

  • Courts do not like to venture into the precarious waters of making new laws, as required around Pet Custody.

  • Child custody disputes do not belong in family court, same for Pets.

  • The Courts refer to pets as property.

  • Justice Richard Danyliuk set an interesting precedent by dismissing a pet custody case

  • Another emerging trend is for pets to stay with the children as a calming influence to help in the separation transition.

Who keeps the pet in a breakup?

Several years ago, Allan Markin, one of the owners of Calgary Flames, launched a $2-million lawsuit against his 22 year-old step-son, Zak Pashak, during the highly volatile breakdown of his marriage to Pashak’s mother. At the centre of the claim? Custody of Molly, the family’s Dalmatian. Markin demanded that Pashak either surrender Molly and pay $1 million in damages, or, keep her and pay $2 million.

As silly as the above scenario may seem, the matter of who will get custody of the family pet is often a huge issue for separating or divorcing spouses. For animal lovers, losing a family pet is as traumatic as losing a member of the family. Traditionally, courts have looked at pets as possessions, much like a TV or a car, and not like a living being. With this approach, sharing custody of the family dog between separated spouses would be about as likely as the spouses continuing to share a toaster on a week-on, week-off basis.

In deciding how to make custody arrangements for children, a court will determine what arrangement is in the child’s best interests. With pets, it has traditionally been the opposite- who gets the pet is decided based on which spouse will benefit most. Recently, some courts have begun to recognize the important role that pets play in the lives of their owners, and have started to treat pets more like children than chattels. This is primarily the case with dogs. Some courts have even made a determination of the best interest of the pet in deciding who should get custody, and have awarded shared custody, visitation and even alimony payments to the custodian. Another emerging trend is for pets to stay with the children as a calming influence to help in the separation transition.

Ultimately Markin won custody of Molly the Dalmatian and Pashak’s mother received a divorce judgment.  For the rest of us who don’t have the time or money to launch a lawsuit over a pet, the best course of action is to attempt to come to an agreement with your spouse and put it in your separation agreement.

How do I fight for custody of my dog?

Pet Custody case a waste of time! - Judge

According to a CBC article released today, Family Court Judge – Justice Richard Danyliuk set an interesting precedent by dismissing a pet custody case, suggesting such matters are a wasteful and demeaning use of court time. He went on to refer to pets as property, placing pets in the same category as a sofa, the cannonball bed and a 2012 Buick.

Pet Custody in OntarioWhile Danyliuk did make some valuable points, it is also important to recognize that, for many pet-parents, pets can’t simply be classified as ‘property’; they have personalities and feelings, they are living beings. They are our companions and a part of the family.

In other areas of the law, pets are protected and do enjoy special treatment, such as in landlord-tenant matters. However, as the article notes, Danyliuk says that in family law specifically, pets are property, and when considered in dispute a judge has no choice but to order the property sold and the proceeds from the sale divided between the couple.

For many, this is not really a consideration at all – I would argue that most would see this as the absolute last resort! But before you go on to label this judge as some kind of animal-hater, let’s put some perspective on this. As I see it, the judge had only two options, neither one of which is pleasant.

Option 1: Rule as he did, dismissing the case, in effect making no ruling on the pet issue. As a result, he pushed the resolution back to the pet owners to make their own decision regarding the pets – this, I would agree, is just where the decision belongs.

Option 2: The judge could have ventured into the precarious waters of making new laws, extending pets as pseudo-children, granting the pets and parents the same access to justice as they would in a child custody matter.

Are new Pet Custody in Ontario laws needed?

Colton, He is a Siberian and Golden Lab cross… a “Goberian”

While many pet-parents and your family lawyer may argue that fur-babies are members of the family, and thus require many of the same rights, making new laws around pets in family law could have the potential of opening up the floodgates to many new cases. And lawyers hoping to make some case law. To be honest, this is the very last thing our family court system needs right now, given just how overloaded it is. In case you are unaware, a visit to family court is more like a visit to the passport office, with long waiting lists for a 20 minute hearing. Long gone are the days of well-considered decisions of judges sitting in their chambers ruminating over the relative merits of your custody and access case. You’ve got about 5 minutes to ‘win’ your case. That’s it.

I know that, for many of us, our pets are our children. The dogs in my life, Inuk and Colten, are like children to me. Well, grandchildren if you want to be precise. I could never imagine them being sold under court order for cash as they are truly priceless in the joy they bring to our family.

Just as I’ve stated on previous occasions, child custody disputes do not belong in family court. I believe it is the same in this situation. A judge hasn’t walked in your shoes, has lived a far different life than you, and having met you for the first time, has a minimal understanding of the context of why you’re in court. The judge has never met your children or your dogs, but when you head to family court, you are asking this judge to make a ruling based on a stack of paper (one you hope they have read), a decision that with certainty will impact the rest of your life and that of your children or your pet. Think about how insane that sounds.

You’ve likely spent valuable time investigating and making decisions regarding the food Bowser eats, or which vet to use, or even which doggie daycare will provide the best care for Bowser. Now you’re going to let a total stranger determine your dog’s future in less than 20 minutes?

As a divorce mediator, the issue of caring for the pet or pets often comes up, and so far we have successfully settled issues in mediation without requiring court interference.

Determining Pet Ownership in Family Law

Questions about pet ownership frequently arise in the context of a divorce or separation, whether involving married couples or common-law partners. How are pets treated in these situations? Under family law, pets are considered property, which means there is no provision for custody or access arrangements as one might find with children.

Property or Family Member?

Despite the emotional bond between pets and their owners, the legal system categorizes pets as akin to property. This categorization means the court’s decision revolves around establishing ownership rather than custody. Ownership determination is akin to any tangible asset, like a vehicle.

The court might conclude that the pets are jointly owned. It will meticulously review evidence to ascertain rightful ownership. Key considerations include:

Who initially purchased the pet?

If the pet was introduced into the relationship by one party, it is likely deemed that individual’s property.
For pets acquired during the relationship, the analysis includes who covered the pet’s expenses, including medical and veterinary bills.
Inspect pet registration details, such as microchips and license documentation, and identify the listed partner.

Observing who primarily cared for the pet.

Evidence and Analysis in Family Law

The intricate analysis to determine pet ownership is evidence-based, focusing on financial contributions towards the pet, registration documents, and care responsibilities. The context of how one partner possibly relinquished the pet—either by leaving it at the shared residence during separation or allowing the other partner to take it without dispute—can also influence the court’s decision.

The essence is that while pets are deeply cherished, family law adjudicates their ownership based on concrete evidence and legal principles, devoid of the custody and access frameworks applied to children.

Where to find a Separation and Divorce Mediator & other Neutral Professionals

If you feel my Soft Landing Divorce Settlement Method is not a good fit for you or my location is not convenient (and Virtual or Remote Location Mediation is not an option.) It is still vital that you mediate your separation and divorce.  You can find a Mediator listed at following organizations:

Other Professionals working as Neutrals

The Institute for Divorce Financial Analysts

Conclusion

Inuk – The Snow Princess

When it comes to the couple discussed in the CBC article, my thinking is that they may have erred when turning to the courts to have this matter settled. The ultimate solution for this couple could be a two-step process of mediation followed by arbitration.

A settlement jointly arrived at is always more durable and long lasting than a solution imposed on the parties by a judge. The key to a successful mediation is flexible thinking, managed emotions and moderated behaviours. However, if the pet-parents arrive at an impasse, arbitration may be the ultimate resolution process. Arbitration is like hiring a private judge, one which the couple pays to adjudicate a binding settlement. Often the arbitrator has also been the mediator so you can rest assured that they will have the fullest understanding of the circumstances surrounding the case to consider in their arbitration award. Additionally, arbitration is private and doesn’t go on public record as court proceedings do.

In the end, I would argue that while the judge may have angered some who believe their family pet are important family members, he ultimately made the right decision in stating that pet custody cases do not belong in family court.

Mediation will, as with child-custody cases, result in a much more amicable and a favourable written agreement for all involved.

Are you having trouble reaching an agreement? Do you want to avoid going before the judge and asking for help? Consider working with a family mediator who can help you end your marriage in a way that is peaceful, cost-effective, and child-focused.

Would you like to learn more? Get in touch for a Get Acquainted Call to learn more about finding a separation agreement with a soft landing.

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About the Author:
Ken Maynard CDFA, Acc.FM

I assist intelligent and successful couples in crafting rapid, custom separation agreements that pave the way for a smooth transition towards a secure future. This efficient process is achieved in about four meetings, effectively sidestepping the excessive conflicts, confusion, and costs commonly linked to legal proceedings. Clients have the flexibility to collaborate with me either via video conference or in-person through a DTSW associate at any of our six Greater Toronto mediation centers, located in Aurora, Barrie, North York, Vaughan, Mississauga, and Scarborough.

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