The Canadian Bar Insurance Association

‘Best interests’ analysis for kids, not pets

When it comes to seeking “custody” of a family pet, Ontario courts have followed a somewhat consistent approach in viewing animals as mere property — not children — although judges are still sometimes asked to treat children and pets equally, Ottawa family lawyer Timothy N. Sullivan writes in Lawyers Weekly.

“Strictly speaking, the family dog and cat are property, and subject to the regular provisions of Part I of the Ontario Family Law Act. Telling your pet-loving client this, however, rarely goes over well,” writes Sullivan, principal at SullivanLaw in Ottawa.

Many people “very frequently, and quite naturally, consider the family pet a member of the family — or at least something more emotionally sentient than the furniture,” he says.

“Ontario has provided a rather consistent approach to the family pet as mere property without engaging in a custody and access analysis as with a child, although sometimes asked to do so,” Sullivan writes in the legal publication.

“While the 1980 case of Rogers v. Rogers [1980] O.J. No. 2229 made an order vesting ownership in one party with access and intermittent possession to the other party, this precedent was not followed in subsequent cases,” he writes. “The Court of Appeal dismissed an appeal of Warnica v. Gering [2004] O.J. No. 5396, confirming there is little time and too few judicial resources to devote to resolving custody and visitation disputes involving pets.

“In determining the best interests of a child for custody purposes, the family pet may be treated differently than the long-suffering sofa,” he writes. “In Ridgeway-Firman v. Firman [1999] O.J. No. 1477, the court allowed the return of two dogs to the wife’s possession although she owned only one of them, as companionship for the minor daughter. Normally, the better property claim prevails. There is no ‘best interests’ analysis at play for pets as there is for children.”

A renewed way of considering the matrimonial division of property when it comes to pets may be beneficial to parties in Ontario, writes Sullivan.

“The evolution of the law, be it common law or statutory, will have to consider far more than the traditional property analysis — not, perhaps, its own ‘best interests’ akin to those of a child, but a global consideration of the well-being of the animal which has feelings and physical needs, and the family members who consider the pet a member of the family,” he writes.

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