If you are an animal person, you know that the family dog or cat (or bird, gerbil, guinea pig, etc.) is considered a member of the family. We love them, cherish them, and spend years with them by our side as faithful companions. In fact, some pet owners will even go as far as to call their pets, their kids or “furbabies”. So, when spouses separate, the ownership of the family pet can be a source of conflict and issues often arise over who gets to retain the furry members of our family.
For all family law issues, if the parties are unable to come to an agreement their alternative is to use the court system. The question is, does this also apply if the parties cannot come to an agreement on the ownership of a pet – will the Court grant you an order stipulating ownership over the cat or dog? And what will that order look like?
In Ontario, the Court has articulated that an order can be made for a pet, but that pets will fall into the category of family property and are subject to division similar to any other piece of valuable property. In Warnica v. Gering,  O.J. No.5396, the Court showed it was sympathetic towards pet owners, agreeing that pets are of great importance to human beings and that parties develop a deep relationship with their pets. However, the Court also clearly stated that pets are to be considered property and not children. As such, the Courts are not prepared to make custody and access orders in relation to pets. Specifically, the Court will not set up a visitation schedule for who gets to see the pet and when. If there continues to be a disagreement over the pet, the Court will use the same tools that would be used in determining who should retain any piece of joint property to decide who will keep the pet.
The exception to the rule is if the parties are able to come to an agreement over the custody of the pet. If there is an agreement regarding an ownership schedule of the pet, the Court has previously issued orders outlining the agreement reached (see Flear v. Flear, 2012 ONSC 2675).
So what does this mean for Fido and Fluffy? It means that if you are separating and there are pets involved, it is best to try and come to an agreement on who will keep the animals. Alternatively, if you can’t come to an agreement, contact our Toronto family lawyers for a free consultation regarding the principles of property division and what that will mean for you and your pet. We have offices in Downtown Toronto, Burlington, Vaughn and Newmarket, for your convenience.