This article was written by Chestnut Park President and CEO, Chris Kapches
Those of us who work in real estate are familiar with what happens to family assets, especially real estate when couples separate and divorce. In Ontario family assets are dealt with according to an equalization scheme pursuant to the Family Law Act. This means that when two people enter a marriage, each spouse becomes automatically entitled to an equal share of the profits of the marriage.
The concept of equalization can become quite complex, but put simplistically, there is an assessment of the value of each spouse’s property at a determined date (the valuation date); all debts are subtracted from the total assets; there is a determination of the value of all assets that each person brought into the marriage; date of marital assets are subtracted from the valuation date assets; finally divide the difference in half. This is the amount of the equalization payment which the spouse with the higher net family property must pay to the spouse with the lower net family property.
The matrimonial home is not included in a spouse’s date of marital assets, even if it was owned at the time of the marriage. Effectively the matrimonial home’s value is equalized between the spouses, regardless of how or when it became the matrimonial home. Because of the special treatment of the matrimonial home, it means that spouses bringing real estate into the marriage must seriously consider whose home to live in, whose name to put on the title to the home, and which property will be rented. Using money from an inheritance to buy a home that a couple lives in can also have a dramatic impact on the entitlement of each spouse upon separation and equalization.
But what happens to pets, either brought into the marriage or acquired afterwards? (There is no room for a discussion as to what happens to children, support, custody, or visitation in this short article.) It may surprise one to know that courts won’t even address the idea of custody or access. In the case of Warnica v. Gering, a 2005 case, the judge dismissed a motion for custody concerning a dog as “a” waste of time, a nuisance or in the alternative an abuse of the court’s process”. This decision was supported by the Ontario Court of Appeal. Other courts in other jurisdictions in Canada have taken a similar approach to custody claims related to pets by divorcing couples.
Warring couples might be dismayed to discover that under our judicial system pets are viewed as “property”. I am certain that most pet owners would be horrified to be told that the lovable, family dog is merely a chattel. It might be even more horrifying to be told that even though courts are not only reluctant to consider, and even more reluctant to order a shared custody arrangement, courts are empowered to order the sale of jointly held property and to divide the proceeds of the sale. Can you imagine having to deal with a court order requiring the family dog to be sold and the proceeds of sale to be divided between the antagonistic spouses?
The threat of this happening means that spouses generally negotiate a settlement amongst themselves. In this way, spouses have more control over the fate of their beloved pet than taking the matter to court.
In a few cases where the courts have dealt with pets and their custody, although not denying that pets are property, judges have indicated that the ownership of a pet is a more complex and nuanced question than the ownership of say, a bicycle. In these instances, the courts have considered such matters as who was the pet’s primary caregiver, who bought or rescued the pet, and who paid for it.
At the end of the day, no reliance can be placed on the courts to resolve your pet custody issue. Matrimonial lawyers recommend that in order to avoid future conflict over pet custody, couples should turn their minds to the ownership of the pet and post-separation residency at the time the pet is bought into a marriage or acquired after marriage. Couples could set up a pet prenup that deals with such matters as post-separation custody access, and the payment of bills associated with the pet and its well-being.
Who would have thought that post-separation issues related to pets could be so complicated? Now you know why this article avoided any reference to children.