Most custody decisions dealt with by the courts concern parents involved in child custody and access disputes. However, pets can also be the subject of custody disputes. A recent decision from the Ontario Superior Court of Justice dealt with one such case which came with an interesting twist -whether the pets status as a therapy dog is enough to determine who should keep it.

Background

The parties were married on May 2, 2007. Their date of separation is disputed, with the wife saying the separation occurred on October 9, 2017, when she sought legal advice to obtain a divorce. The husband states the date of separation was November 1, 2017, which is the date the wife’s lawyer spoke to him about the divorce, or alternatively December 2, 2017, when he was served with an Application for Divorce.

The wife works for the government, while the husband is unemployed due to medical issues. In September 2017 he travelled to Europe (paid for by the wife) to take some college classes with the hope of securing an internship at a car company, or alternatively, starting his own business. He insisted on taking the couple’s dog with him, telling the wife the dog would be a comfort to him while he focused on his studies.

While the husband was overseas the wife became aware that he was spending time with a German woman who he had met in 2005. This led her to pursue a divorce. The husband retuned to Canada on November 17, 2017. At this time he retuned the dog to the wife.

The issue of the dog

There were a number of issues before the court, most dealing with the matrimonial home, spousal support, and other financial matters. However, one of the more interesting questions was whether there could be a declaration that the mother is the owner of the dog.

The court was presented with evidence that the wife paid $700 for the dog in July 2012. She completed a training course with the dog in February 2014, and attended all of her veterinary appointments. She also registered herself as the dog’s owner with the City of Ottawa, and with the exception of one feeding and some walks, was the dog’s primary caregiver.

The husband testified that the dog was purchased for him as a “therapy dog” and that she “anticipates his pain, soothes him and generally makes life for pleasant for him.” He pointed to the dog’s traveling to Europe with him to support this assertion. The couple purchased a “therapy/companion dog” certificate for the dog in 2015 at a cost of $25. This allowed the dog to travel to the United States with the husband. They also paid a psychologist $200 on two occasions to write letters which would allow the husband to take the dog on flights to and from Europe. The wife contested this, pointing out that the psychologist had never met the couple, and that the certificate they ordered was incredibly simple to obtain, demonstrating this before the court. While the husband hoped this certification and the letters from the psychologist would be enough to establish the dog was his therapy dog, the court did not agree.

In its decision, the court wrote, “…the certifications provided by the (husband) or the (wife) either that (the dog) is a “service” or “support” dog, or that she is permitted to travel with one or the other, do not assist the court in making the determination of who owns her. Most significantly, the (husband) has provided no evidence from any treating physician that he currently has that he requires a support or service animal. Based, therefore, on all of the evidence referred to above, I find that the (wife) is the rightful owner of (the dog).

At Borden Family Law we understand how difficult custody disputes can be. Whether they involve pets or children, custody disputes are stressful and emotional affairs. The team of family lawyers at Borden Family Law understands this. We work with our clients to deal with the emotions that come with determining what is best for your family. We focus exclusively on family law, and our client benefit from our deep knowledge of the ins and outs of the family law system. We work with clients in Oshawa, Brooklin, and the surrounding areas. Please call us at 905.576.6090 or contact us below to see how we can help you today. Don’t forget to ask about our flat fees.