May 23, 2024

By Brian Babcock 

Many of us love our pets. But in law, they are possessions like any other personal property. In the case of family breakdown, or the death of a partner or spouse, ownership was the determination of who gets the pet.

THE ISSUE

Sometimes ownership is not clear or was clearly shared. What then?

THE CASE

In Carvalho v. Verma, an Ontario Superior Court judge examines the test for who gets the dog.

This was a hard fought case between an estate and a former unmarried romantic partner. The deceased and the partner had purchased the dog together, so that did not resolve ownership. Instead, the parties filed over 2000 pages of material, including 25 affidavits between them. Cross-examinations were conducted on 18 of those affidavits.

This was a very serious, hard-fought case.

The judge points out that ownership is no longer the sole determining factor. Recent cases have looked at the relationship between the parties and the dog. One of those decisions provides this list of non-exhaustive factors:

1.  Whether the animal was owned or possessed by one of the people before the relationship began;
2.  Any express or implied agreement as to ownership, made either at the time the animal was acquired or after;
3.  The nature of the relationship between people contesting ownership at the time the animal was first acquired;
4.  Who purchased and/or raised the animal;
5.  Who exercised care and control of the animal;
6.  Who bore the burden of the care and comfort of the animal;
7.  Who paid for the expenses related to the animal’s upkeep;
8.  Whether at any point the animal was gifted by the original owner to the other person;
9.  What happened to the animal after the relationship between the litigants changed; and
10.  Any other indicia of ownership or evidence of agreement relevant to who has or should have the ownership of the animal.

 

The judge looks at the evidence affecting each factor, and additional issues of:

• Whether or not to favour the status quo (not in this case)
• The “best interest of the dog” as suggested by a Small Claims Court decision (not a weighty factor in this case)
• Whether the dog is a companion animal or support animal for one party (not on the evidence in this case)

 

Though both had shared care of the dog, and paid expenses for its care, the deceased had purchased the dog, and there was no indication, despite all that evidence, that he had gifted it to his partner.

After examining all these factors, the judge concludes that the dog was owned by the deceased and forms part of his estate. The partner, who had interim “custody” of the dog, was ordered to turn it over to the estate trustee.

Despite all of the evidence, argument, and additional factors, ownership ruled in the end.

TAKEAWAYS

• Planning for your pets should be part of your estate planning.
• Consider the factors listed by this case.
• Leave a clear written summary of your position on ownership, either by will or separate document, which addresses the factors, to avoid a dispute as substantial (and presumably expensive) as this case.

 

WHAT WEILERS LLP CAN DO TO HELP YOU

We ask the right questions and provide sound advice for all your estate planning decisions, including who gets the dog. We use a combination of a questionnaire and a personal meeting that surpasses the reliability of a do-it-yourself kit or computer program. We are willing to take the time to customize the estate plan, including the will, to fit your needs.

Whether it is concern about man’s best friend, or other issues that make YOUR estate plan personal to you, give us a call. We may be the right lawyers for you.