Pictured: My beloved dog, Yuki, in her Christmas tree outfit.

When thinking about what to write for this week’s blog post, I realized that I have the last Fasken slot before Christmas. This got me thinking: what can I write that’s relevant to the holidays? It then dawned on me that this is the first Christmas that I’ll be spending with my new dog, Yuki. Coincidentally, there have been a few legal developments in Canada this past year with respect to dogs (and other pets):

Estate Dispute Over Pet Ownership

First was the case of Carvalho v. Verma, 2024 ONSC 1183, a February 2024 decision of the Ontario Superior Court of Justice. Leonard Carvalho, who passed away in November 2022, was in a relationship with Aliesha Verma. They acquired an American Bull Terrier named Rocco Jr. in 2022.

After Mr. Carvalho’s death, Ms. Verma took Rocco Jr. to live with her. She took him from a backyard without providing notice or consent to Mr. Carvalho’s sister Arlete, his estate trustee. The estate trustee applied to the court for a declaration that Rocco Jr. was owned by Mr. Carvalho at the time of his death, thus forming part of his estate, and that Rocco Jr. should be returned to the possession of the estate trustee.

The case reaffirms the principle that under Ontario law animals are considered personal property (but see further discussion on this below). The question was whether the dog was purchased by Mr. Carvalho, by Ms. Verma, or by Mr. Carvalho as a gift for Ms. Verma. Ms. Verma’s position was that Mr. Carvalho purchased Rocco Jr. for her as a gift, while the estate trustee asserted that Mr. Carvalho had purchased Rocco Jr. for himself and had not made any such gift.

In summary, the court looked at the factors outlined in Coates v. Dickson, 2021 ONSC 992 for determining who owns a pet:

• whether the animal was owned or possessed by one of the people before the relationship began;
• any express or implied agreement as to ownership, made either at the time the animal was acquired or after;
• the nature of the relationship between people contesting ownership at the time the animal was first acquired;
• who purchased and/or raised the animal;
• who exercised care and control of the animal;
• who bore the burden of the care and comfort of the animal;
• who paid for the expenses related to the animal’s upkeep;
• whether at any point the animal was gifted by the original owner to the other person;
• what happened to the animal after the relationship between the litigants changed; and
• any other indicia of ownership or evidence of agreement relevant to who has or should have the ownership of the animal.

The court ultimately determined that Rocco Jr. belonged to the estate, despite the fact that both parties cared for him and contributed to his expenses. There was evidence that Mr. Carvalho bought Rocco with his own funds. He exercised control over Rocco Jr., deciding who had access to the dog. In addition, text messages between the parties suggested that both parties considered Mr. Carvalho to be the owner.

The case also went over the concepts for claims a valid gift, as well as promissory estoppel. However, the court found that the facts of this case indicated that Ms. Verma had neither a valid gift claim nor a promissory estoppel claim. My colleague Jane Martin has blogged about the appeal decision and the principles relevant to a stay of appeal.

From a planning perspective, my other colleagues on this blog have written about estate planning for pets (and I’ve also written about trusts for animals, albeit in the context of the hit 2020 Nintendo Switch game Animal Crossing: New Horizons). However I think the takeaway from Carvalho Estate is that it’s important to ensure that if parties are sharing access to and care obligations for an animal, they need to ensure that there is clear evidence confirming who the animal’s legal owner is.

Family Law Dispute Over Pet Ownership

The concept of pet ownership took center stage in a more recent family law case, this one focusing specifically on a Yorkshire Terrier! Franco v. Franco, 2024 ONSC 6436 is a November 2024 decision of the Ontario Superior Court of Justice. This was in the context of a matrimonial dispute regarding which of Emmanuela Franco and Richardo Franco was the rightful legal owner of their Yorkshire Terrier named Meg.

The parties began cohabiting in May 2010, married in June 2017, and moved to Canada in June 2019. They have one child, a nine-year-old daughter, and separated on March 4, 2023. The wife claimed that on April 17, 2014, the husband paid for Meg and subsequently gifted Meg to her. Between March 24, 2023 and July 31, 2023, the parties agreed it was in the best interests of their daughter to spend as much time as possible with Meg. They agreed to share possession of Meg on an alternate week basis so that Meg spent the weekends with their daughter. In other words, Meg did not follow the same schedule as their daughter but was always with their daughter on the weekends. Following a brief reconcilement and subsequent separation, on November 20, 2023, the husband advised the wife that he would not return Meg to her. According to the wife, this decision was unilateral and made without notice to her. The husband had Meg with him exclusively until the date of the decision.

In Franco, the court conducts an analysis of Duboff v. Simpson, 2021 ONSC 4970 regarding the principle that disputes over pet ownership are determined on the basis of legal ownership, not on the best interests of the animal. Although Carvalho Estate also briefly touched on Duboff the family law-oriented nature of Franco and the post-separation behavior (dog ownership aligned with their parenting arrangement for their daughter) warranted a greater analysis of this principle. The court cited statements from Duboff such as the view that “courts are not equipped to supervise the sharing of a pet” and that “[o]rders requiring some kind of shared schedule would encourage cases like this in the context of limited court resources”.

Franco also looked at the Coates factors. Although the husband paid for the dog, there were various indicia of the wife’s legal ownership: it was her name alone on the agreement of purchase and sale, the microchip registration, and the veterinarian records. Service providers to the animals also provided evidence that Meg was the wife’s dog.

Ultimately, the court determined that the wife was Meg’s legal owner, specifically as a result of the husband gifting Meg to her. Interestingly, unlike in Carvalho, the court did not really take a look at the legal requirements for a gift (e.g. intention, acceptance and delivery).

British Columbia Creates Separate Legal Regime for Pets

British Columbia has taken a different approach to the law in this area. On January 15, 2024, British Columbia became the first Canadian province to include provisions relating to pet custody in its family law legislation (the Family Law Act, S.B.C. c. 25).

These provisions can be summarized as follows:

• Section 1 now includes the term “companion animal”, defined as “an animal that is kept primarily for the purpose of companionship”. Section 3.1 confirms that companion animals do not include service animals or animals kept as part of a business or agriculture.
• Section 92 now allows spouses to make agreements regarding the joint ownership, shared possession of or exclusive ownership of a companion animal;
• Paragraph 97(2)(a) gives the right of the British Columbia Supreme Court to make an order declaring who has “ownership of, or right of possession to, property, including a companion animal”.
• However, subsection 97(4.2) indicates that orders respecting companion animals must not declare that the spouses jointly own the companion animal, or require that spouses share possession of the companion animal.
• Finally, subsection 97(4.1) lists the factors that the court must consider for making such orders. The factors actually differ quite a bit from the Coates factors:
  • the circumstances in which the companion animal was acquired;
  • the extent to which each spouse cared for the companion animal;
  • any history of family violence;
  • the risk of family violence;
  • a spouse’s cruelty, or threat of cruelty, toward an animal;
  • the relationship that a child has with the companion animal;
  • the willingness and ability of each spouse to care for the basic needs of the companion animal;
  • any other circumstances the court considers relevant.

Interestingly, there has already been a decision in accordance with the new amendments: Bayat v. Mavedati, 2024 BCSC 619. The decision is relatively short, and doesn’t even confirm whether the parties were actually common law spouses (there was a dispute about the length of the cohabitation). Essentially, the court looked at the factors under subsection 97(4.1) and determined that the parties should have custody of a golden retriever, Stella, on a 50/50 week on, week off basis. This is despite subsection 97(4.2), which the court does not even mention (although sources suggest that the judgment was based upon a prior agreement between the parties pursuant to Paragraph 97(2)(a)). It will be fascinating to see how the law develops in this area, and how future decisions might refer to Bayat.

The Future of Pet Ownership Law

Duboff makes the law in Ontario clear:

Although pets are often viewed by people as members of their family, in law they are personal property much like other chattels, even when purchased during the course of a relationship. In that regard, they are an indivisible piece of property. The relevant question is ownership, not who wants the dog more or who has more love and affection for the dog, or even who would be the best owner.

It’s a challenging thing to think about. On the one hand, I can see how B.C.’s “companion animal” regime and even an order like the one in Bayat represents an equitable arrangement that acknowledges the parties’—and the animal’s—circumstances. On the other hand, deferring to legal ownership allows pet disputes to be dealt with decisively.

Court resources are indeed limited, but despite concerns about custody arrangements, pets can technically be jointly-owned. This was the case in Coates and in Hutchinson v. Hutchinson, 2019 ONSC 6574 (although in Coates there were two dogs, and the court and the parties ultimately determined that each party should take one dog).

I think that changing social attitudes are indicating that pets have become a critical part of the family in recent years (particularly as less people in younger generations are having children). Perhaps it’s about time that Ontario further recognizes this reality through legislative amendments similar to those that British Columbia has implemented.

It’s important keep in mind that much of this is in the context of spouses or otherwise romantic partners. While most disputes regarding pet ownership are among couples, legal ownership seems to still be the standard for any disputes of this nature between parties who are not in an intimate relationship.

Personal Reflections Before the Holidays

This is the first time in my life that I’ve actually owned a dog. When I was growing up my family was never really into pets. But due to various circumstances in my life we decided to get Yuki this past summer. I paid for her, my name is on her microchip and collar, and I’m registered on her vet records.

A little bit about Yuki: she’s an albino Yorkshire Terrier. Her name is based on the Pokémon Yukihami, a reference to the Japanese words 雪/yuki/(snow) and 食み/hami/(eating). The English translation of the name is “Snom”, a combination of “snow” and “nom” (onomatopoeia for eating) (definitely appropriate for this time of year)! She was born without the ability to hear, so we have to be extra cautious when we take her outside. But we love her all the same and we’re so excited to spend our first Christmas with her.

I think many pet owners share the sentiment that there’s a certain type of unique joy that a pet can bring. It’s not surprising to me that, for example, the parties in Carvalho spent hundreds of thousands of dollars on legal fees fighting for ownership of Rocco Jr. Many of us would probably do the same sorts of things for our beloved pets.

I’ve come to learn pets really are a part of the family, and due to the significant emotional impact they can have on peoples’ lives, they warrant careful consideration in the family and estate planning context. Of course, the specific considerations may vary on the circumstances, just as they would when thinking about our various other loved ones.

So, no matter who is joining you at the dinner table (or scrounging for scraps as Yuki as often does), Yuki and I wish all of you a happy and healthy holiday season!