Under Ontario’s current Family Law Legislation, pets, of any sort, are not treated like children they are, for all purposes of law “property”, like furniture, cars or bank accounts.  So, judges do not decide things on the basis of the “best interests of the pet”, the way judges decide parenting issues on the basis of the best interest of the child.  Since the “best interests” do not factor into the decision about who gets the pet, the issue about who gets to have the pet is determined by who owns the pet or who can prove to have “title” to the pet.

To answer whether you can get your pet back, you have to understand how property division works in separation and divorce. It is important to note that being married in Ontario does not give spouses an automatic right to ownership of each other’s possessions. That said, the pet in question, belongs to whomever paid for it. However, if there happens to be pedigree papers, the owner listed on that document or other paperwork that proves ownership is believed to be the legal owner. Ownership remains the same, regardless of whether spouses are married or divorced.  Under Part I of the Family Law Act, married spouses share in the value of each other’s property but do not own each other’s possessions in any way – unless they bought something in joint names.

Nonetheless, if you own the pet, your spouse does not and your spouse will not turn the pet over, you may have to start court proceedings. Rule 44 of the Rules of Civil Procedure give the Court the power to order the Sheriff’s office go to wherever your ex is residing and recover items that you have proven to the court belong to you.   The procedure is quite complex and you will most definitely need a lawyer to assist both with getting the Order and with arranging the necessary security for damages that the Court Rule requires.

If you and your spouse own the pet jointly, then the situation becomes much more complex. You must put forth a Family Court Application under section 10 of the Family Law Act for a determination that you are the rightful sole owner of the pet based on the “principals of Equity” rather than title (because you have contributed more to the value of the pet than your spouse). Alternatively, you can claim, under that section, that you should be the owner who has possession of the pet because you will “preserve the asset” better.  However, where there is joint ownership, and one owner does not want to buy out the other, Judges do not try to determine the value of assets, or force one party to buy out the others’ interest.  The judge is likely to order that the pet be sold on the open market and the proceeds of sale divided between the owners (again Ontario Law treats pets and “property” and not as children).  The judge may order that either party can put in offers/bids to buy the pet, with it being sold at the highest price. Alternatively, the judge may order that neither party can try to buy the pet if that would be best for all concerned.

If you and your ex can agree to it, you could go to Family Arbitration and instruct your arbitrator to decide the issue of where the pet should live based on the pets best interest. However, section 2.2(1) of the Arbitration Act, 1991 technically requires that assets acquired during a marriage, be divided according to the Family Law Act and not the parties’ instructions.  Therefore, your best options might be to try to work something out through negotiation, mediation or collaborative practice, where the needs of the pet can come first.

For assistance with the division of assets during a divorce or separation contact experienced and certified specialist in family law, John P. Schuman of Devry Smith Frank LLP. He is the partner managing the Family Law Group at DSF, a full-service law firm located near Eglinton and the Don Valley Parkway in Toronto. Contact him directly at 416-446-5080 or email john.schuman@devrylaw.ca 

“This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”