Written By: Meagan E. Abercrombie
Gone are the days when pets were considered mere property, but not long gone. Decisions regarding the care of our beloved family pets after a breakup were previously based on who purchased the animal, treating it as an asset. The growing love for animals as our ‘fur-babies’ has increased the need for the law to address disputes about pets’ best interests after separation.
Pets as Property
Before any legislative changes were made, certain decisions were recorded of judges taking into account the best interests of a pet as a subcategory of “property that can be treated humanely.”
In 2017, the Honourable Judge Cowling faced the case of Luna, a Jindo breed rescue dog, whose owners were considered ‘partners in a joint venture’ of owning Luna as property (2017 BCPC 115).
The Honourable Judge Cowling ultimately also took into consideration that Luna had a stronger bond with the Defendant since separation, and the Claimant’s application for either sole or joint custody failed.
Pets Not Treated as Children
In 2022, the Honourable Justice Skolrood made an interim order allowing the Respondent to have interim access to the parties’ two rescue dogs 1 day per month during the time leading up to trial, since he had not seen them for two years due to the Claimant withholding them (2022 BCSC 915).
The judge clarified that the decision wasn’t based on what was best for the dogs, nor was it similar to child custody arrangements. Since the parties disagreed, the judge made a practical decision to allow the Respondent some time with the dogs before the trial to ensure he wasn’t at a disadvantage and could maintain a relationship with them.
The principle that pets are considered property remained unchanged (para 22). Justice Skolrood referred to a 2016 Saskatchewan case to explain why the law views pets this way.
“The proposition at law that dogs are property and are to be treated as such, and not as children are treated, is borne out by a reasoned and dispassionate consideration of the differences in how we treat dogs and children.
A few examples should suffice as illustration. In Canada, we tend not to purchase our children from breeders. In turn, we tend not to breed our children with other humans to ensure good bloodlines, nor do we charge for such services. When our children are seriously ill, we generally do not engage in an economic cost/benefit analysis to see whether the children are to receive medical treatment, receive nothing or even have their lives ended to prevent suffering. When our children act improperly, even seriously and violently, we generally do not muzzle them or even put them to death for repeated transgressions.”
This type of analysis ruled until late 2023, when Bill 17 was being read and passed to create more specific legislation regarding pets.
Pets as ‘Companion Animals’: Recent Legislative Amendments
The recent amendments to the Family Law Act (FLA), effective January 15, 2024, address the status of pets as ‘companion animals,’ a unique subcategory of family property.
Currently, both the Provincial Court and Supreme Court of BC are able to make an order respecting ownership of a family’s companion animal upon the breakdown of a relationship.
Note that neither court can declare joint ownership of a companion animal or make orders requiring the spouses to share possession of the companion animal, it is only 100% ownership to one party that the court can decide in cases of disagreement.
The factors a judge must now consider when deciding which party to grant sole possession of the company animal to are set out in section 97(4.1) of the FLA:
(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.
In a past 2023 case which prospectively applied the FLA amendments correctly and cited the 97(4.1) factors, Justice Forth awarded the Claimant mother sole possession of the family’s golden retriever named Paws. The court considered how the Children, who were living with Claimant, were bonded to the dog while the Respondent on the other hand worked long hours and had not made efforts to see or spend time with Paws (paras 339-344 of 2023 BCSC 1444).
Further application of this all-or-nothing regime will roll out in due time.
Your Best Options:
The most predictable and flexible method of sharing custody of your family pet is only possible via an agreement between both parties. This would allow you to share time with your pet and allocate the sharing of expenses for them, including any other creative arrangements you desired.
Should the parties be unable to reach an agreement, an application to Provincial or Supreme Court should result in an all-or-nothing determination of sole ownership of the pet. Note that this FLA regime only applies to parties who are ‘spouses’, meaning you were either legally married or in a marriage-like relationship for two years or more.
For assistance creating a legally enforceable pet custody agreement or if you are considering starting/defending an application in court regarding your companion animal under the family law regime, our family law lawyers would be happy to help you navigate your best options.
