Under Ontario's current Family Law legislation, pets, of any sort, are "property", such as furniture, cars or bank accounts. Judges do not decide matters based on the "best interests of the pet", as they do parenting issues, which are based on the "best interests of the child".
Rather, the issue of pet custody is determined by the principles of property division in separation and divorce. In Ontario, marriage does not grant spouses an automatic right to ownership of each other's possessions.
Under the Family Law Act, married spouses share in the value of each other's property, but only own jointly items which they purchased in their joint names. It therefore follows that the spouse who can prove to have "title" to the pet will be the spouse to whom custody of the pet will be granted.
Where pedigree papers exist, the legal owner is the individual named in the pedigree document or in any other document that indicates to whom the pet belongs, failing which, title generally vests in whomever paid for the pet. Ownership does not change, regardless of whether the spouses are married or divorced.
You may initiate court proceedings, should your non-owner spouse refuse to turn the pet over to you, as the established owner. Under the Rules of Civil Procedure, the Court is empowered to order the Sheriff 's office to go to the residence of your non-owner spouse to recover items that are proven to belong to you.
The situation becomes even more complex if you and your spouse jointly own the pet. You must bring an application under the Family Law Act for a determination that you are the pet's rightful, sole owner. This application is based on the principles of equity rather than on title. You must prove that you should be granted custody because you contributed more to the value of the pet than did your spouse, or that you should be granted custody because you will better "preserve the asset".
The proceedings may be nuanced should one spouse not wish to buy out the other's ownership interest in the jointly purchased pet. In that case, the judge is likely to order that the pet be sold on the open market and that the proceeds of sale divided between its joint owners. Or the judge may order that either party can bid for the pet, which will be sold to the higher bidder. The judge may also order that neither party can try to buy the pet, if that would be best for all concerned.
While Family Arbitration might be one avenue, Ontario's Arbitration Act requires that assets acquired during a marriage, be divided according to the Family Law Act and not according to the parties' instructions. Your best option is therefore likely to try to work something out with your spouse through negotiation, mediation or collaborative practice, where the needs of the pet can come first.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
