A few months ago, we blogged about collaborative law, a form of alternative dispute resolution with promise for resolving estate disputes, especially those arising from improper estate planning. Since collaborative law is best-suited for situations where the parties have an ongoing relationship and the dispute involves personal and emotional matters, collaborative law may be a paw-tential way to resolve estate disputes involving pets. 

In family law, collaborative law is often used to amicably resolve custody disputes over children. The fact that many pet owners consider their furry companions as valuable family members, sometimes even as their children, suggests that collaborative law could extend to pet custody disputes in the estates context. As well, owners typically want their beloved pets to be loved and cared for, even after the owners die. By having the parties work together to create a mutually agreeable outcome that prioritizes the pet’s best interests, a collaborative process will help uphold the intention of deceased pet owners.

In Canadian law, animals are considered “property,” so courts traditionally view estate disputes involving pets through a property lens, focusing on “ownership” and determining which party should receive the pet based on their financial contributions. However, recent pet custody cases have adopted a different approach. In Marquis v Harvey, the Superior Court of Québec weighed the interests of two dogs, Piko and Floki, in a custody dispute between former common-law partners. In her analysis, the Honourable Justice Sophie Picard heavily considered the well-being of Piko and Floki and their connection to their owners when determining which party should receive custody. In the end, Justice Picard granted sole custody of both dogs to one partner after finding that she had a closer relationship with the dogs.

British Columbia courts also recently departed from the traditional pet custody analysis by adopting the “best interests of the animal” approach. In Bayat v Mavedati, Associate Judge Nielsen of the Supreme Court of British Columbia focused on the well-being of Stella, the beloved dog of the disputing parties, and her relationship to each owner, thus emphasizing the significance of pet welfare in the custody analysis. In Bond v McInulty, the British Columbia Civil Resolution Tribunal (the “BCCRT”) used the same approach to resolve a pet custody dispute between former romantic partners. The BCCRT awarded sole custody to the partner who was deemed to be more suitable to care for their dog, Bentley.

Unfortunately, Ontario courts do not seem to be following this trend. Carvalho v Verma is a recent case discussed in Darien’s blog, in which the Ontario Superior Court followed the traditional property analysis, focusing on ownership, to resolve a dispute over the custody of the testator’s dog, Rocco Junior. Justice Stewart noted that “dogs are personal property much like other chattels (albeit indivisible)” and that “the question is one of ownership, not who wants the dog more, who loves the dog more or who would be the best owner.” The reluctance of Ontario courts to consider the best interests of companion animals highlights the benefits of collaborative law. Rather than relying on the court to adopt an unconventional analysis, collaborative law may be the most efficient way to preserve the intention of deceased pet owners who want their furry family to be cared for in the best possible way. Pet custody disputes in the estates context often occur between family members, who want to maintain their relationship, and may involve a pet considered to be a long-time member of the parties’ family. By preserving relationships and allowing the parties to reach an agreeable solution centered around the best interests of the pet, collaborative law provides a win-win-win solution to the testator, the pets and the parties. 

Have a great day!

Suzana Popovic Montag and Tristan Montag.