BACKGROUND
This case is about which party owns their 10-year-old Yorkshire Terrier named Meg.
The parties began cohabiting in May 2010 in Brazil and later married on June 24, 2017. They moved to Canada in June 2019 and have a nine-year-old daughter who resides equally with both parents under a 2-2-3-3 parenting schedule.
The wife claims that Meg, acquired in April 2014, was a gift from the husband to her as she selected Meg from a breeder, named the dog, and facilitated the purchase, though the husband paid for it. Conversely, the husband asserts that he independently sought out and chose Meg and considers himself the dog’s owner despite acknowledging the wife’s affection for Meg.
The parties separated on March 4, 2023, and agreed to alternate Meg’s care weekly, ensuring she spent weekends with their daughter. After a failed reconciliation attempt between July 31, 2023, and September 23, 2023, the parties resumed their shared possession of Meg on an alternating weekly basis. However, following a period during which the wife exclusively cared for Meg while the husband traveled and moved, the husband unilaterally decided in November 2023 to retain Meg, refusing to return her to the wife. The wife’s efforts to resolve the matter amicably failed, prompting her to file an Application seeking relief, including decision-making responsibility for their daughter, spousal and child support, property division, and a declaration that Meg is her dog and should be returned to her.
ISSUES
The issues for the court to decide on this Motion are:
- Whether the wife or husband owns the dog, Meg; and
- If the court is not prepared to make an ownership determination on an interim Motion, who should have possession of Meg pending Trial?
THE LAW
Under the law of Ontario, pets are treated as personal property and disputes over their ownership are resolved based on ownership rights rather than the animal's best interests. Courts reject the application of principles used in child custody cases to pet ownership disputes.
There are two main approaches to determining ownership: the traditional approach, which focuses on who purchased the pet and whether any ownership transfer occurred, and the expanded approach, which considers additional factors such as agreements about ownership, the relationship context when the pet was acquired, who cared for and paid for the pet, and any evidence of gifting or ownership transfer.
In Duboff v. Simpson, the court clarified that while shared custody arrangements for pets may be sought, courts are not equipped to supervise such arrangements due to policy concerns and resource limitations. Instead, the focus remains on determining a clear owner based on the circumstances and evidence presented.
ANALYSIS
In this case, the wife was found to be the lawful owner of Meg based on compelling evidence such as purchase and sale agreements, veterinary and microchip registration documents listing her as the owner, confirmation from the breeder and groomer corroborating her ownership, and veterinary appointment records in Toronto under her name. Additionally, a message from the husband demonstrated his unilateral claim to ownership, reflecting his awareness of Ontario's legal stance on pet ownership but failing to override the documented evidence supporting the wife's ownership.
Furthermore, the court determined that resolving Meg's ownership at a Motion, rather than proceeding to Trial, was consistent with the objectives of the Family Law Rules, ensuring fairness and efficient use of judicial resources amidst backlogs. Evidence showed that the wife and husband initially agreed to share Meg's care post-separation, benefiting their daughter by allowing the dog to live in both households. However, the husband unilaterally ended this arrangement in November 2023, withholding Meg and denying the wife access without justification, despite her efforts to reach an agreement. His actions, including withholding vaccination records listing the wife as Meg's owner, registering Meg's microchip under his name after withholding the dog, and retaining counsel in Brazil and Canada, suggested an attempt to bolster his claim to ownership unfairly. The court also noted the husband's greater financial resources to litigate and drew an adverse inference from his failure to produce evidence supporting his claims.
Considering the evidence holistically, the court concluded that ownership of Meg rested with the wife. The husband was ordered to immediately return Meg to the wife’s possession and pay costs fixed at $5,000.00.