It's fair to say that some of us prefer the company of animals over people. Companion animals are often valued as more than just pets, but more like immediate family members. That's why it can be startling to learn that up until recently British Columbia has treated animals like property in family law disputes. Our beloved companions were equivalent to other assets like cars, toaster ovens, and couches. Of course there were exceptions and flexible approaches were taken for the protection of an animal's welfare, but the legislation was clear that animals were property in the context of family law disputes. However, starting on January 15, 2024, important changes to BC's Family Law Act have allowed the courts to make orders regarding ownership of animal companions when a marriage or marriage-like relationship ends.
The new amendment defines "companion animal" as an animal that is kept primarily for the purpose of companionship. It is important to note that guide dogs, service dogs, animals kept as part of a business, and animals kept for agricultural purposes are not considered companion animals under the law.
The courts have the power to declare who owns a companion animal. When a court does make an order respecting companion animals it must not declare that the spouses jointly own the companion animal or require the spouses to share possession of the companion animal (section 97(4.2)). This distinction can have a significant impact on your decision to make a private agreement with your ex-partner or to rely on the court process.
Section 97(4.1) states that the courts must consider certain factors when determining an order respecting companion animals. The factors that must be considered include:
(a) the circumstances in which the companion animal was
acquired;
(b) the extent to which each spouse cared for the companion
animal;
(c) any history of family violence;
(d) the risk of family violence;
(e) a spouse's cruelty, or threat of cruelty, toward an
animal;
(f) the relationship that a child has with the companion
animal;
(g) the willingness and ability of each spouse to care for the
basic needs of the companion animal;
(h) any other circumstances the court considered relevant.
Examples of the Section 97(4.1) Factors
It can be difficult to imagine what kind of situations apply to each factor listed above without any examples and not all the factors will be applicable in every case. Since the amendments to the Family Law Act are recent we don't have many cases or precedents of how the court is going to approach these situations. But we do have one example of the new law being applied since the amendments came into effect.
On March 13, 2024 a former couple was disputing the ownership of their golden retriever, Stella. The Associate Judge went through the factors listed above when making the decision. The claimant (a person who is bringing a claim) was seeking an order from the court that would give her exclusive care of Stella.
(a) The Circumstances In Which The Animal Was Acquired
The receipt for Stella was in the respondent's (the person responding to the application, in this case the former partner of the claimant) name and not the claimant's. The claimant stated that her ex-partner purchased Stella, but she e-transferred him half the money after the purchase. She also claimed that she was not on Stella's birth certificate because the respondent told her only one person could be named on Stella's document. However, the claimant did produce multiple receipts as evidence that she contributed to Stella's care and purchase.
(e) A Spouse's Cruelty, Or Threat of Cruelty, Toward an Animal
The claimant alleged that the respondent was neglectful and cruel to Stella because he delayed spaying her and allowed Stella to socialize with other dogs when the claimant deemed it unsafe and was not diligent in getting the dog vaccinated. The Associate Judge found no evidence of neglect, cruelty, or negligence. The respondent delayed spaying the dog for medical reasons and was himself a veterinarian and his evidence on the allegations was accepted by the court.
The claimant also stated there was evidence of abuse because Stella may have contracted worms on one occasion and formed a lump on her elbow when she spent too much time on the respondent's office floor rather than a bed. The Associate Judge was satisfied that the respondent addressed the issue and the dog did have appropriate bedding.
Finally the claimant suggested that the respondent struck Stella after the dog peed on the floor. The Associate Judge stated he was not prepared to attribute this to any lack of concern for the dog, even if the complainant's version of events did take place.
The Importance of Providing Evidence During Pet Custody Disputes
It is important to note that the court requires evidence to make decisions. It is difficult for a Judge, who doesn't personally know the people involved in the case, to immediately identify the character and credibility of those people without any evidence to prove their allegations. This is why it is important to produce as much evidence as possible. Things like vet bills, photographs, videos, receipts, statements from dog walkers, neighbours, or friends can support your case. It is challenging for an Associate Judge or a Judge to make a decision based solely on your word.
Do You Have to Go Through Court to Determine Pet Custody?
No, you don't have to go through court to determine pet custody. You and your ex-partner are free to make decisions concerning pet custody on your own without court interference. However, there are a few things you should consider.
The court must not declare that you and your ex-partner jointly own a companion animal or require you to share possession of the companion animal (section 97(4.2)). If your ultimate goal is to split custody and ownership of your pet, you and your ex-partner should attempt to reach an agreement independently. Some former couples come to their own agreement on who keeps the pet, or decide to implement a custody schedule. It is a good idea to speak to a legal professional about drafting a contract to ensure both you and your ex-partner will keep to the agreement.
About Mackrell International – Canada - Lindsay Kenney LLP is a full service business law firm with offices in Vancouver and Langley, BC and a member of Mackrell International. Mackrell International – Canada is comprised of four independent law firms in Alberta, British Columbia, Ontario and Quebec. Each firm is regionally based and well-connected in our communities, an advantage shared with our clients. With close relations amongst our Canadian member firms, we are committed to working with clients who have legal needs in multiple jurisdictions within Canada.
This article is intended to be an overview and is for informational purposes only.