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Shared ownership

Region: Ontario Answer # 4015

Defining ownership

Although the ownership of animals is not specifically dealt with in provincial property laws, animals are considered property in Canada. Someone is usually considered an “owner” if they legally own the animal by way of proof of purchase or as the intended recipient of a gift.

It is provincial animal care and protection legislation which establishes that an animal becomes the property of a person when it is sold or given to them.

Examples of such legislation include:

How else is ownership determined?

Definitions of ownership can be extended beyond a sole owner to include other people who possess, control, or care for the animal.

Under the Ontario Dog Owners’ Liability Act, someone may be considered a dog owner (and potentially held liable for damages caused by bites or other injuries to persons or other domestic animals) if they:

  • legally own a registered dog,
  • look after or babysit a dog for its owner, or
  • are the parent of a minor who is babysitting a dog

What is shared ownership?

Shared ownership is when one person explicitly shares ownership of an animal with at least one other person. Although this is most often seen with individuals who live together and care for an animal, people who do not live together may care for an animal and have agreed to shared ownership. People do not have to care for an animal equally to share ownership of it, as shared ownership can be established by having multiple names on the purchase receipt or the adoption, registration, or veterinary records.

Shared ownership responsibilities

Sharing ownership means sharing both the rights and responsibilities of owning and caring for the animal. For example, a shared responsibility might be sharing financial costs such as food and veterinary care. Pet owners are also responsible for ensuring the animal’s right to:

Shared ownership may also include being held liable for damages if the animal causes harm to a person or another animal.

Animal ownership agreements

People who share ownership of an animal can clearly define the rights and responsibilities of each owner in an animal ownership agreement or pet custody contract. These agreements or contracts can include such details as:

  • who owns the animal,
  • who takes care of the animal and in what way,
  • who is allowed to make health decisions for the animal, and
  • what happens if the parties separate

These issues can also be addressed in cohabitation, marriage, and separation contracts. These types of agreements can help protect the interests of animals and minimize disputes in the event of a break-up, a divorce, or the end of a shared cohabiting situation. For instance, they may set out:

  • who gets the animal upon separation,
  • a visitation schedule,
  • financial responsibilities, and
  • who gets the animal if one or both of the owners die

Who gets the animal in a separation?

As mentioned, an animal ownership agreement or a clause in a marriage, cohabitation or divorce contract can help avoid disputes over ownership after a separation. However, if such an agreement does not exist or the parties involved cannot reach a decision about the ownership or care of the animal on their own, these issues may have to be decided in the courts.

Canadian courts treat disputes over animal ownership similarly to disputes over other personal property. Although animals are often considered family members, the terms “visitation,” “contact,” or having “access” are usually only applicable in the legal context of children, and not animals. Similarly, terms like “custody” and “guardianship” do not legally apply to animals as they are considered one’s personal property, and ‘custody’ or ‘access’ orders are not applied to property.

How does a court decide ownership?

When deciding ownership, courts will traditionally look at if the animal was owned by only one party before the start of the relationship or cohabitation. Individuals who owned the animal before the start of the relationship will usually have the greatest entitlement claim to the animal. If an animal is acquired during a relationship, it can be considered shareable, although both parties may make a claim for sole ownership.

If the animal was acquired during the relationship or cohabitation, courts will look at which party has their name on the official registration, adoption, or veterinary records; which party the animal was explicitly intended for if it was a gift; and if the animal was paid for and purchased through shared funds.

Best interests of the animal?

Courts generally do not consider an animal’s best interests in determining ownership, however, they may consider any of  the following factors:

  • The nature of the relationship between the disputed parties when the animal was first acquired;
  • Who raised the animal;
  • Who exercised care and control of the animal;
  • Who bore the burden of the care and comfort of the animal;
  • Who paid for the expenses related to the animal’s upkeep;
  • If the animal has been residing with one owner significantly more than the other parties,
  • If there are any children who may experience trauma as a result of being separated from the animal;
  • Who cared for the animal following separation;
  • Who is better suited to provide continued care for the animal after separation; and
  • Any other indications of ownership, or evidence of agreements, relevant to who has or should have ownership of the animal.

What else can a court decide?

Deciding ownership is not the only issue a court can decide. The separating parties can request that the court make an order to sell the animal and split its value among the disputing parties. If someone is found to not be the owner but contributed significant time and money to the care of the animal, then they may be able to request compensation. If the animal is found to be owned by both parties, the court may still require that the party keeping the animal moving forward pay the other party their share of the pet’s value.

Conclusion

Courts are currently much less dismissive of people going to court over animal ownership disputes than in the past and are more likely to consider the context of the dispute and the relationship of the animal to the parties in determining ownership.

Individuals that share ownership should strongly consider writing an ownership agreement or contract. Even organizations, such as the Montréal SPCA, are increasingly encouraging families and couples to sign contracts that establish the ownership of their animal(s) in the event of separation.

A lawyer specializing in pet law can help draft ownership agreements and assist in animal ownership disputes as well as with other animal issues.

More info

For more information on animal care and ownership, view other sections of Animal Law, or visit our Links and Resources.


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