- A domestic contract, such as a marriage contract, cohabitation agreement or separation agreement, is unenforceable unless it is in writing, signed by the parties and witnessed.
- Ontario's Family Law Act lets a person apply to court to decide a question of ownership or possession of particular property between them and their spouse.
- Married and common-law partners are treated differently on property, so how you held the relationship matters.
For many people, a pet is family. When a relationship ends, the question of who keeps the dog or cat can be among the hardest, even when the money has been sorted out.
This article explains the Ontario property rules that can come into play, and why the answer often depends on who bought the animal, how you arrange things and whether you are married. It cannot predict how a court would view your particular pet, and a lawyer can confirm how the rules apply to you.
Start with who owns the pet
Disputes about a pet usually begin with ownership. Who bought or adopted the animal, whose name is on the registration or adoption papers, and who paid the costs are the kinds of facts people point to.
Between spouses, the Family Law Act, s. 10(1), allows a person to apply to court to decide a question of ownership or possession of particular property between them and their spouse. The court may declare ownership, order partition or sale, and order compensation if the property was disposed of.
Whether and how that provision is used for a particular animal depends on the facts, so ask a lawyer before assuming it fits your dispute.
Married spouses and property division
For married spouses, property division in Ontario works through equalization. 'Property' is defined broadly as any present or future, vested or contingent interest in real or personal property. When a divorce is granted, a marriage is declared a nullity, or spouses separate with no reasonable prospect of resuming cohabitation, the spouse with the lower net family property is entitled to one-half of the difference between the two. A court may award more or less than half only if equalizing would be unconscionable.
Some property is excluded. For example, property acquired by gift or inheritance from a third person after the date of marriage is excluded, and so is property the spouses agreed by domestic contract to exclude. Gifts between spouses are not excluded. The spouse claiming an exclusion has the onus of proving it.
How a pet is counted, if at all, in that process depends on the facts and on how the parties choose to resolve it. Many couples simply agree on who keeps the animal rather than argue about value.
Common-law partners
Equalization applies only to a 'spouse' as defined in s. 1(1) of the Family Law Act, which does not include unmarried cohabitants. Ontario.ca says common-law couples are not legally required to split property acquired while living together, and that property belongs to whoever bought it. A partner who contributed to the other's property may have a claim to part of it, which may require going to court.
In practice, if you are common-law, who bought and paid for the pet may carry more weight, and a written agreement is even more useful.
Put it in writing
The cleanest solution is usually an agreement. A domestic contract, which includes a marriage contract, cohabitation agreement or separation agreement, is unenforceable unless it is made in writing, signed by the parties and witnessed. A domestic contract also prevails over the Act unless the Act provides otherwise.
A written agreement lets you spell out your own arrangement for the pet, such as who keeps it and how costs are shared, and a domestic contract prevails over the Act unless the Act provides otherwise. Whether those terms can be enforced is a question for your lawyer.
If a separation agreement was made without disclosure of significant assets, debts or other liabilities that existed at the time, a court may set it aside.
What to do next
- Gather proof of ownership: adoption or purchase papers, licences, microchip and vet records, and receipts.
- Note who has cared for the animal day to day and who has paid its costs.
- Keep communication calm and in writing, and avoid removing the pet without discussion.
- Consider proposing a written arrangement as part of your wider separation agreement.
- Talk to a family lawyer if you cannot agree, especially if you are common-law or the pet was a gift or a pre-relationship purchase.
Frequently asked questions
Will a court decide who gets the dog based on what is best for the dog?
The Family Law Act provision on ownership asks the court to decide a question of ownership or possession of particular property. How a court weighs a pet's circumstances depends on the facts, and a lawyer can advise you.
What if my partner and I were never married?
Equalization does not apply to unmarried cohabitants. Property generally belongs to whoever bought it, though a partner who contributed to the other's property may have a claim.
Can we just agree between ourselves?
Yes, and it is often the best route. To be enforceable as a domestic contract, the agreement must be in writing, signed and witnessed.
Does a pet I received as a gift count in property division?
For married spouses, property acquired by gift from a third person after the date of marriage is excluded from net family property, and the spouse claiming the exclusion has the onus of proving it. This exclusion is part of equalization, which applies only to married spouses and not to unmarried cohabitants. Whether this applies to a pet depends on the facts, so ask a lawyer.
Sources
- Family Law Act, s. 5(1) (e-Laws) — Ontario e-Laws
- Ontario.ca – Dividing property when a marriage or common law relationship ends — ontario.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
This is a family law question
Start a file online — flat, published fees, reviewed by a licensed lawyer before a dollar is owed.