“However much we love our dogs, the law treats them as an item of personal property. The question is who owns the creature.
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.).
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.
That list is not exhaustive; depending on the case, there may be other relevant factors.
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.
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.”