I once lost a seat in business class to an alleged Emotional Support Animal (“ESA”). The dog’s owners arrived for a flight in which they were apparently ready to put their alleged ESA, Woofie Goldberg[i], into her carrier and stow her under the seat in front of their own seats. Problems arose when it turned out that the couple had seats immediately behind the bulk head (therefore no seats in front of them) – and I was asked to switch rows. Anything for a pupper, I thought.

To make a long story less long, Woofie Goldberg did not fit into her carrier, Woofie’s people had nothing to document her status as an ESA[ii], and Mr. Dog Owner had a complete meltdown which led to him storming off of the plane (leaving Mrs. Dog Owner and Woofie Goldberg to gather their belongings and what little dignity remained, and follow suit). The flight was delayed while their luggage was offloaded, and I did eventually get my seat back. I still feel bad for little Woofie Goldberg, and wonder if she has burned out from handling Mr. Dog Owner’s tantrums.

Now what on earth, you ask, does this have to do with estates? Aside from revealing my deep skepticism about the legitimacy of Emotional Support Animals, there is an estates-related point here, I promise.

A dispute over the custody of a dog named Rocco Jr. was considered by the Superior Court and in turn by the Court of Appeal in Carvalho Estate v. Verma.[iii]  van Rensburg J.A. dismissed a motion seeking stay pending appeal of an order made by Stewart J. earlier this year, in which Stewart J. declared that Rocco Jr. was owned by Leonard Carvalho at the time of his death, and ordered that Rocco Jr. be returned to Leonard’s estate trustee. The Appellant was in a relationship with the deceased although there is complete disagreement between the parties about the type of the relationship. The deceased’s Will was silent about pets, and the Appellant was not a beneficiary of his estate.

The test for granting a stay pending appeal was set out by van Rensburg,[iv] including an analysis of whether the appellant would suffer irreparable harm if a stay were refused. The Appellant argued that Rocco Jr. was her emotional support dog, relevant to the issue of irreparable harm. The motions judge found that the evidence suggest that the Appellant’s anxiety was related to the underlying litigation more strongly than to custody of the dog. The analysis of whether there was a serious question to be tried and of the balance of convenience also favoured the Respondents, and Rocco Jr. is to remain with the estate trustee pending appeal.

Under current Ontario law, pets are considered personal property much like other chattels, and there have been no shortage of family law cases considering pet ownership When pet custody is in dispute, the courts look at the relationship between the parties and the dog, and consider a non-exclusive list of factors including possession of the animal, express agreements, payment for care and comfort of the animal and so on.[v] If nothing else, the process of having a court figure out who gets the dog on death is terribly expensive and a bit of planning might prevent disputes from escalating.

All of which is to remind those of us who prepare estate plans for pet lovers, especially pet lovers where there may be family conflict after death, to urge our clients to consider a pet-care plan as part of an estate plan. If nothing else, making the pet-care plan part of the overall discussion around end-of-life wishes might spare some expenses and anxiety amongst those we leave behind. The partial indemnity costs for the Rocco Jr. motion were $20,000, which would buy a lot of kibble for the little guy.

Jane Martin, Estate and Trust Consultant Team Lead, Scotiatrust

[i] Names have been changed to protect the innocent.

[ii] According to Legalline.ca, one can have a dog, pig, cat, ferret, monkey, miniature horse, hamster, or fish as an ESA, and to claim the animal as such, you will need and “ESA letter” from a qualified mental health professional, “Otherwise, the animal is simply considered a normal (companion) pet.” Special training is not required for the animal in question. For the purpose of travel, the federal Accessible Transportation for Persons with Disabilities Regulations address whether air carriers must accept ESA’s. Many do, with certain provisos including the animal be wearing a harness, vest, leash, fit in a carrier, be wearing a cape.

[iii] Carvalho Estate v. Verma (CA).

[iv] At paragraph 4, the test for a stay is set out:

The overarching consideration is whether a stay is in the interests of justice: Sase Aggregate Ltd. v. Langdon, 2023 ONCA 644, at para. 10. This is determined by a consideration of the factors in RJR-MacDonald Inc v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, at pp. 347-49:

(a)   whether the appeal raises a serious question to be tried;

(b)   whether the moving party would suffer irreparable harm if the stay were refused; and

(c)     the balance of convenience, namely which of the parties would suffer greater harm from the granting or refusal of the stay.

[v] Carvalho Estate v. Verma (SCJ), citing Duboff; Coates v. Dickson, 2021 ONSC 992.