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Dog mom. Cat dad. Fur child. People love their pets, and many individuals (myself included) consider their pet(s) as part of their family.
So when a couple separates, what happens to the family pet?
There is no best interest of the cat or puppy support guidelines. Domestic animals are not afforded the same treatment as children. In law, animals are treated as personal property.
However, this year the Superior Court of Justice for Ontario released two decisions that discuss the ownership of dogs upon separation.
Coates v Dickson
In February, the Court released its decision in Coates v Dickson. The parties, who separated fourteen months after their wedding, purchased two dogs (Jazz and Jetta) during their relationship. The parties could not agree where the dogs should live.[1]
In her decision, Justice Baltman outlined two different approaches followed in the case law when determining pet ownership. First, there is the traditional, narrower approach: the person that pays for the pet owns the pet.[2] A similar approach was used recently in King v Mann, where the Court decided that Copper the dog belonged to Ms. Mann, because Ms. Mann purchased Copper and Mr. King could not prove that Copper was a gift from her to him. [3]
On the other hand, there is the contemporary, broader approach, which looks at the relationship between the person and the pet.[4] This approach is guided by the consideration of a non-exhaustive list of factors:[5]
- Whether the animal was owned or possessed by one of the people before their relationship began;
- Any express or implied agreement as to ownership, made either at the time the animal was acquired or after;
- The nature of the relationship between the people contesting ownership at the time the animal was first acquired;
- Who purchased and/or raised the animal;
- Who exercised care and control of the animal;
- Who bore the burden of the care and comfort of the animal;
- Who paid for the expenses related to the animal's upkeep;
- Whether at any point the animal was gifted by the original owner to the other person;
- What happened to the animal after the relationship between the litigants changed; and
- Any other indicia of ownership, or evidence of agreements, relevant to who has or should have ownership of the animal.
Justice Baltman decided that the broader approach was the correct one, and that Jetta and Jazz were jointly owned by both parties. Jetta and Jazz were purchased during the relationship. Both parties contributed time and money to the dogs’ care and welfare, and both parties were listed as the dogs’ owners in various official documents connected to the dogs.[6] Given the conflict between the parties, Mr. Coates was awarded ownership of Jetta, and Ms. Dickson was awarded ownership of Jazz (the evidence showed that Jazz had protective qualities that were particularly important to Ms. Dickson).[7]
Although Coates v Dickson provided a concise overview of the law as it relates to pet ownership, it begged the question as to how the Court would handle a dispute if there was only one pet involved.
Enter Duboff v Simpson.
Duboff v Simpson
In July, the Court released its decision in Duboff v Simpson. The parties, who were together for about four years and were not married, disagreed over the ownership of one dog, Layla.[8] In considering the Court’s analysis in Coates v Dickson, Justice Papageorgiou decided that Layla belonged to Mr. Duboff.[9] Amongst many things, Her Honour considered the following:
- Duboff was listed as the owner on many of Layla’s documents, including her adoption application and contract, her microchip and veterinary records, and her pet insurance policy. Ms. Simpson was aware of these documents and did not take issue with the fact that she was not listed as Layla’s owner;[10]
- Duboff paid the vast majority of Layla’s expenses. Funds from the parties’ joint account (which were typically used for joint expenses) were infrequently used to pay for Layla’s expenses. When Ms. Simpson would paid for one of Layla’s veterinary bills, Mr. Duboff offered to repay Ms. Simpson. Ms. Simpson never reciprocated Mr. Duboff’s offer when he paid for Layla’s expenses;[11]
- Duboff worked from home and was Layla’s primary caregiver, being able to walk Layla three times per day and take her to the veterinarian when needed;[12]
- Messages from Mr. Duboff suggesting that Layla was jointly owned (i.e Simpson and I are getting a new puppy) were found not to be evidence of ownership, but simply “communications between a committed couple”;[13] and
- Simpson’s post-separation involvement with Layla was totally dependent on her relationship with Mr. Duboff.[14]
Ms. Simpson also a sought constructive trust over Layla’s ownership in her favour. She claimed that her direct contributions to Layla’s expenses and care (a financial deprivation) benefited Mr. Duboff (an enrichment).[15] The test applied by the Court was the following:[16]
a. There is enrichment;
b. There is a corresponding deprivation; and
c.There is no juristic reason for the enrichment.
The Court said that Ms. Simpson had not established unjust enrichment: Ms. Simpson cared for Layla and spent money on Layla because she loved her, which did not constitute a deprivation to Ms. Simpson, but rather a benefit. Also, there was a juristic reason for any benefit derived by Mr. Duboff, as he and Ms. Simpson were in a committed relationship and they were participating together in the care of Layla.[17]
The Court did not want to impose the discretionary remedy of a constructive trust in that case and found that it would not be appropriate to force Mr. Duboff to share Layla for policy reasons, particularly because a shared schedule would likely result in further conflict:[18]
“Even though a dog is considered property, it is true that it is more than property to most people. However, a dog is not a child. It straddles a difficult place between the two. As property, the court could order that the dog is sold and the parties share the proceeds, which I’m certain neither party would want. Or it could impose some kind of shared schedule, as [Ms. Simpson] requests.
However, courts are not equipped to supervise the sharing of a pet. Orders requiring some kind of shared schedule would encourage cases like this in the context of limited court resources. As well, there are significant wide-ranging policy concerns about ongoing supervision which could be required.”
Conclusion
The Courts appear to be somewhat veering away from its traditional approach of treating pets as objects by considering the entire family dynamic. Hoegg J.A. said it best: “the ownership of a dog is a more complex and nuanced question than the ownership of, say, a bicycle”.[19]
That said it does not appear that the Courts are prepared to entertain an Order for parenting time (if one can call it that). As Justice Papageorgiou noted in the beginning of her reasons, “The relevant question is ownership, not who wants the dog more or who has more love and affection for the dog, or even who would be the best owner”.[20]
Although people seldom begin a relationship with its end in view, the factors above are worth thinking about when deciding to welcome a pet into the family.
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[1] Coates v Dickson, 2021 ONSC 992, paras. 2-4 (“Coates”).
[2] Coates, para. 7.
[3] King v Mann, 2020 ONSC 108, paras. 71 and 83.
[4] Coates, para. 8.
[5] Coates, para. 8(d).
[6] Coates, paras. 17 and 18.
[7] Coates, para. 19 and 20.
[8] Duboff v Simpson, 2021 ONSC 4970, paras. 2 and 3 (“Duboff”).
[9] Duboff, para. 14.
[10] Duboff, paras. 22 and 23.
[11] Duboff, paras. 25 – 28.
[12] Duboff, para. 29.
[13] Duboff, paras. 30 – 32.
[14] Duboff, para. 36.
[15] Duboff, para. 40.
[16] Duboff, para. 39
[17] Duboff, para. 42.
[18] Duboff, paras. 43 – 45.
[19] Baker v Harmina, 2018 NLCA 15, para. 52.
[20] Duboff, para. 15.
