Pet Custody in B.C. Divorces
Anyone who has ever owned a pet knows they quickly become valued family members.
Yet in most of Canada, pets are regarded as nothing more than property when it comes to divorce. So if a judge has to decide who gets Fido the dog, Smokey the cat or Thumper the rabbit, the court’s decision is primarily determined by who purchased the animal.
This approach has created problems in many provinces, especially if one partner brought the animal into the relationship but the other partner fed and took care of it.
Recent Updates to the Family Law Act
That is not the case in British Columbia, thanks to amendments to the Family Law Act and the Provincial Court Family Rules in January 2024. These changes allow the Provincial Court and the B.C. Supreme Court to take into account the animal’s best interests when making orders about ownership when a relationship ends.
Premier David Eby stated the move should reduce the stress families and couples are under when they separate.
"Going through separation or divorce is already difficult for couples and children. Our justice system should be there to help, not make it harder," he said. "By making these reforms with input from people in B.C., we hope to make an already difficult time a bit less stressful for everyone involved."
Factors Considered in Pet Custody Decisions
The amendments to s.97 of the Act require the court to consider the following factors when deciding who gets the family pet:
- the circumstances in which the companion animal was acquired;
- the extent to which each spouse cared for it;
- any history of family violence;
- the risk of family violence;
- a spouse's cruelty, or threat of cruelty, toward an animal;
- the relationship that a child has with the companion animal;
- the willingness and ability of each spouse to care for its basic needs; and
- any other circumstances the court considers relevant.
Companion Animals vs. Pets: New Terminology
The amended Act treats pets more like humans than simple possessions, recognizing the role they play in the family relationship. The terminology has also changed. The legislation makes no mention of “pets” but instead uses the term “companion animals.”
They are defined as being “kept primarily for the purpose of companionship.” Animals that are not companion animals include guide and service dogs, animals kept as part of a business and those kept for agricultural purposes.
Court Orders and Agreements for Pet Ownership
Spouses who are separating are encouraged to make their own agreements about companion animals. After all, that gives the ex-partners more control and flexibility than if a judge is tasked with the decision.
If they cannot reach an agreement on the future of the animal, they can take the matter to court. However, the court can only make orders giving exclusive ownership and/or possession to one spouse. An order for joint possession is not an option.
However, the new provisions to the Act recognize the spouses’ ability to enter into a legally binding agreement to:
- jointly own a companion animal;
- share possession of a companion animal; and
- give exclusive ownership or possession of a companion animal to one of the spouses.
Future amendments to the Act may change that, but joint possession is currently not an option for the court when it comes to Fido, Smokey or Thumper.
The team at Mills Family Law can help you draft a legally enforceable written agreement that deals with all ownership issues, including shared custody of your pet. Those include who pays for its food and medical treatments, the time allotment each partner has with the animals and who has the authority to make decisions about ongoing and end-of-life care.
If a judge grants sole ownership of a companion animal to one spouse but the other person won’t return it, the first spouse can apply to the court to enforce the order.
Children's Relationships with Pets
Until the January amendments, the relationship between the family pet and children in the relationship was not considered a factor when B.C. judges considered who gets the pet during a divorce.
The amendments addressed this shortfall, stating that “the relationship that a child has with the companion animal” is one of the factors that must be considered. As Ebby noted in January: “These changes include putting the health, safety and well-being of kids at the centre of every decision and using the actual experiences of families in the system to improve it. The initial changes also recognize that pets are an important part of the family and allow a child’s relationship with a pet to be considered and respected.”
A strong bond with the family pet can provide children with a sense of support and relief during the challenging transition of divorce or separation.
Applicability of the Family Law Act
It is important to note that the Family Law Act applies to spouses in a “marriage-like relationship” in certain circumstances. While that would certainly include married couples or those in adult interdependent relationships, it would not include casual relationships or cases where multiple people live in a household where there is a pet present.
Knowing whether your relationship is covered by the Act can be complicated so it is a good idea to talk to a lawyer about it.
If the Family Law Act doesn’t apply to your relationship, you can appear before the Civil Resolution Tribunal (CRT), the Provincial Court’s Small Claims Court or the B.C. Supreme Court. Generally speaking, the decision about which legal avenue to pursue depends on the dollar value of the legal claim.
- CRT usually deals with claims for up to $5,000.
- Small Claims Court usually deals with claims from $5001 to $35,000.
- B.C. Supreme Court usually deals with claims over $35,000.
Contact us for assistance
Mills Family Law offers a comprehensive array of family law services to help you manage your separation and divorce. We can help you get the guidance and support you need to navigate family law in British Columbia with as little stress as possible. Contact us for a free consultation.
