Who Gets to Keep a Pet When a Couple Breaks Up?

When a Couple Splits Up and Continued Possession of a Pet Is In Dispute the Law Will Consider Including Whether the Pet Was Owned By One of the People When the Relationship Began, Whether An Ownership Agreement Was Made, Who Purchased and Raised the Pet, Who Cared For and Provided Comfort to the Pet, Who Paid the Pet Expenses, Among Other Factors.

Understanding Who Gets the Pets When a Relationship Ends

Lawsuit Document At the end of a relationship, much like how a Family Court may become involved in decisions regarding continued parenting of children, a civil court, such as the Small Claims Court, may become involved to decide who gets possession of a pet.

The Law

When a couple splits up, a court may be asked to deal with the issue over who will get possession of a dog or cat or other animal.  Historically the law viewed pets in the context of just an object rather than as a sentient beings; however, within the recent cases of Coates v. Dickson, 2021 ONSC 992 and Duboff v. Simpson, 2021 ONSC 4970, which cited Coates it does appear that pets, including the ongoing possession of a pet, should be treated with careful consideration by courts with many factors relevant to the question of who should receive legal possession of the pet.  Specifically, in the Coates and Duboff cases, it was respectively said:

[6]  However much we love our dogs, the law treats them as an item of personal property. The question is who owns the creature.

[7]  That said, the case law reveals two different approaches to determining the ownership of pets. The more traditional, narrow approach turns on who paid for the dog: King v. Mann, 2020 ONSC 108, at para. 71; Warnica v. Gering, [2004] O.J. No. 5396, at paras. 25-28. That approach considers the care and maintenance of the dogs (paying vet bills, purchasing food, walking them, etc.) irrelevant to ownership. Although Warnica was upheld on appeal, the appeal was focussed primarily on whether the hearing judge was entitled to decide the case based on written materials filed during a case conference or whether a trial was needed: 2005 CanLII 30838 (ON CA), [2005] O.J. No. 3655 (C.A.).

[8]  The broader, more contemporary approach looks at the relationship between the parties and the dog. This approach has been adopted in many (but not all) Small Claims Court decisions, which is where these claims are frequently heard given their relatively modest monetary value. The principles are well summarized by Adjudicator W.A. Richardson in MacDonald v. Pearl, 2017 NSSM 5, at para. 25:

a.  Animals (including dogs) are considered in law to be personal property;

b.  Disputes between people claiming the right to possess an animal are determined on the basis of ownership (or agreements as to ownership), not on the basis of the best interests of the animal;

c.  Ownership of – and hence the right to possess – an animal is a question of law determined on the facts;

d.  Where two persons contest the ownership of an animal, the court will consider such factors as the following:

i.   Whether the animal was owned or possessed by one of the people before their relationship began;

ii.  Any express or implied agreement as to ownership, made either at the time the animal was acquired or after;

iii. The nature of the relationship between the people contesting ownership at the time the animal was first acquired;

iv. Who purchased and/or raised the animal;

v.  Who exercised care and control of the animal;

vi.  Who bore the burden of the care and comfort of the animal;

vii.  Who paid for the expenses related to the animal’s upkeep;

viii. Whether at any point the animal was gifted by the original owner to the other person;

ix.  What happened to the animal after the relationship between the litigants changed; and

x.   Any other indicia of ownership, or evidence of agreements, relevant to who has or should have ownership of the animal.

[9]  That list is not exhaustive; depending on the case, there may be other relevant factors.

[10]  In recent years this broader approach has continued to find favour in various courts: Eggberry v. Horn et al., 2018 BCCRT 224, at para. 31; Oh v. City of Coquitlam, 2018 BCSC 986, at paras. 50-53; Delloch v. Piche, 2019 BCPC 369, at paras. 19-24; and Almaas v. Wheeler, 2020 BCPC 51, at paras. 6-18 and 63-74.

[11]  Those two competing approaches collided in a case that was heard by three successive courts in Newfoundland: Baker v. Harmina, 2018 NLCA 15. Only one dog was in issue there. The trial judge, hearing the matter in Small Claims Court, took the narrow approach, and granted ownership to Mr. Baker, because he paid for the dog.

[12]  Ms. Harmina appealed to the Supreme Court Trial Division. The appeal judge found that the small claims judge had erred in deciding ownership without considering the full context of the parties’ relationship. She concluded that the parties owned the dog jointly and ordered that Mr. Baker (who often worked out of town) should keep the dog while he was in town and Ms. Harmina the rest of the time.

[13]  Mr. Baker’s subsequent appeal to the Newfoundland Court of Appeal resulted in a split decision. The majority preferred the narrower, more traditional approach taken by the small claims judge and expressed the view that joint ownership – particularly where one dog was at issue – would be a highly undesirable result: at paras. 19-27.

[14]  In dissent, Hoegg J.A. accepted that in law dogs are considered property, but agreed with the appeal judge that the dog in issue was jointly owned. She observed that people acquire personal property all the time, usually solely but sometimes jointly, and in so doing “pay little attention to legal rules respecting exactly who is acquiring title to the property”: at para. 49.

[15]  Most importantly, Hoegg J.A. took an expansive, wholistic view of human behaviour vis-á-vis their pets, at para. 52:

Like the SCTD Judge, I am of the view that the ownership of Mya involved much more than a determination of who paid for her at the time of purchase.  The ownership of a dog is a more complex and nuanced question than the ownership of, say, a bicycle.  In this regard, I see the non-exhaustive list of principles to which the SCTD Judge referred, set out by Adjudicator Richardson … as helpful and relevant to determining the ownership of a dog. [emphasis added].

[16]  That approach was followed by Miller J. in the recent decision of Hutchinson v. Hutchinson, 2019 ONSC 6574. She rejected the notion that “the difficulties which naturally flow from a finding of joint ownership of a pet should themselves preclude such a finding”, and found that the evidence before her “strongly” supports a finding that the dog was “jointly owned”: at paras. 58-65.

[17]  In my view, this broader approach is the correct one. Ownership of a dog is an investment that goes beyond the mere purchase price. It includes the care and maintenance that are an integral part of “owning” the dog. I agree with Hoegg J.A. and Miller J. that separating the purchase price from the upkeep is both artificial and unfair. That is particularly so where, as here, there are two dogs in issue and, assuming the facts support joint ownership, they can be divided. Though in a perfect world dogs who co-reside would remain together, litigation, by definition, almost always involves some compromise.

[15]  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: Brown v. Larochelle, 2017 BCPC 115 (“Brown”), at para. 16Henderson v. Henderson, 2016 SKQB 282 at paras. 23, 40Warnica v. Gering, 2004 CanLII 50065 (“Warnica”), at para. 28, aff’d 2005 CanLII 30838, at para. 6.

[16]  The court has authority to determine ownership and to provide compensation for harm to property interests: King v. Mann, 2020 ONSC 108 (“King”), at para. 19. The court has no general discretion to redistribute property or alter ownership, but as with other kinds of property there may be issues as to whether a particular piece of property was made a gift or whether it is held in trust for another party, by way of constructive or resulting trust: King, at para. 20.

[17]  The traditional approach to determining who owns the dog focuses primarily on who purchased and paid for the dog and whether there are any discrete transactions where ownership changed: Baker v. Hamina, 2018 NLCA 15 (“Baker”), at para. 11Warnica; Brown, at para. 16.

[18]  In the recent case Coates v. Dickson, 2021 ONSC 992, at para. 8, the court took a broader approach to ownership than who purchased the dog, and held that the court should take into account the following when determining the ownership of a dog:

a.  Whether the animal was owned or possessed by one of the people before the relationship began;

b.  Any express or implied agreement as to ownership, made either at the time the animal was acquired or after;

c.  The nature of the relationship between the people contesting ownership at the time the animal was first acquired;

d.  Who purchased and/or raised the animal;

e.  Who exercised care and control of the animal;

f.  Who bore the burden of the care and comfort of the animal;

g.  Who paid for the expenses related to the animal’s upkeep;

h.  Whether at any point the animal was gifted by the original owner to the other person;

i.  What happened to the animal after the relationship between the litigants changed; and

j.  Any other indicia of ownership, or evidence of agreement relevant to who has or should have the ownership of the animal.

Summary Comment

It appears that the courts of Ontario, at least at the Superior Court level and thus with binding precedent upon the lower Small Claims Court, per the stare decisis principle, are deeming that many factors unique to each circumstance deserve review and consideration when a dispute involving continuing pet possession arises between a split couple.

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