Who Gets the Pet? Legislative Changes Regarding Companion Animals Now in Effect

Who Gets the Pet? Legislative Changes Regarding Companion Animals Now in Effect

Anyone who has a pet knows that these adorable creatures are part of the family, too. For many years, animal law and family law professionals alike have been advocating for amendments to the Family Law Act that will better reflect the way in which pets form an integral part of diverse, modern families.

As of January 15, 2024, these long-awaited amendments have finally arrived. In a landmark legislative measure, the British Columbia Family Law Act has been amended to provide structure and criteria to determine disputes over pet ownership and possession following a marriage breakdown.

This legislative change, following, is the first of its kind in Canada.

Companion Animals as More Than Just Property

Prior to these newly implemented changes, pets were simply treated as “property” under the Family Law Act. The question of who would keep the family pet after a divorce was decided on the same factors as any other kind of property.

This overly simplified categorization failed to account for the diversity of modern families and the important role that pets can play in the home. Most pet owners see their furry family members as much more than merely property, and it’s time the law reflected this.

Divorcing couples unable to come to their own agreement may have previously had little faith in the courts’ ability to help them decide who would be the ongoing owner of their beloved pet. The changes to the Family Law Act should help create clarity and structure surrounding pet custody disputes, hopefully bolstering faith in the courts to decide these kinds of disputes and encouraging early settlement.

Key Changes Implemented

 Upholding Family Law Agreements

One of the key changes implemented is an amendment to section 92 of the Family Law Act, which enables the court to uphold agreements between spouses respecting the division of property and debt.

 Section 92 has been amended to add the following paragraphs:

(e) jointly own a companion animal;

(f) share possession of a companion animal;

(g) give exclusive ownership or possession of a companion animal to one of the spouses.

This will allow the court to uphold a family law agreement made between the spouses in which they have both agreed to the ownership and/or possession of the pet. The amendments encompass a broad scope of possible agreements: spouses can agree to jointly own and/or share the possession of their pet, or they can decide for one spouse to be the sole owner moving forward.

Jurisdiction to Determine Ownership and Possession

The other key legislative change is an amendment to section 97 of the Family Law Act, which sets out the factors a court will consider in determining how to divide family property.

Section 97(2)(a) has been amended to provide that a court can declare who has ownership of, or right of possession to, property, including a companion animal. A “companion animal” is now defined by the Family Law Act as an animal that is kept primarily for the purpose of companionship, which expressly excludes:

·         A guide dog or service dog within the meaning of the Guide Dog and Service Dog Act;

·         An animal that is kept as part of a business;

·         An animal that is kept for agricultural purposes.

 To ensure that the courts have the proper tools to make such a determination, the following subsection has been added to section 97:

 (4.1) In determining whether to make an order under subsection (1) respecting a companion animal, the Supreme Court must consider the following factors:

 (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 considers relevant.

 (4.2) An order respecting a companion animal must not

(a)   declare that the spouses jointly own the companion animal, or

(b)   require the spouses to share possession of the companion animal.

 (4.3) Sections 95 [unequal division by order] and 96 do not apply to the making of an order respecting a companion animal.

This new subsection will help to provide clarity and structure for couples dealing with a dispute over their companion animal, particularly given the mandatory language used: the court must consider these factors. Consideration of factors such as willingness and ability to care, the history of care, and any risk or history of family violence or animal cruelty will help to ensure pets remain safe and well cared for following a marital breakdown.

In a statement, Premier David Eby explained that going through a separation or divorce is a challenging time, and the “system should be there to help, not make it harder”. Ensuring that a child’s relationship with the family pet will be considered by a court will hopefully allow for an already difficult time to be a little bit less stressful.

Subsection 97(4.2) expressly provides that the court cannot order joint ownership or shared possession of a companion animal. Unfortunately, this limitation may not always allow for orders to be made in the best interests of the animal, particularly if both spouses have a strong relationship with the animal. However, keep in mind that section 92 has been amended to allow for family law agreements which provide for the joint ownership and shared possession of a companion animal. Therefore, spouses who both have a strong relationship with their pet and believe joint custody will be in its best interest moving forward can ensure joint ownership and shared possession, but only if they are able to come to such an agreement.

While the application of these new legislative measures remains to be seen, they certainly signal a positive move forward in the development of the law keeping pace with the needs of modern families.

Want to learn more? Please contact our team of Vancouver family lawyers for a consultation.