Two notable changes that characterize the modern family as compared with families in previous generations include the fact that (1) separations and divorces are more common; and (2) pet ownership is on the rise. However, these two trends can combine to create a problem – who gets to keep the family pet when a couple calls time on their relationship?
The British Columbia Government is stepping in to clarify the legal situation, introducing amendments to the Family Law Act in recognition of the important role that pets play in families. This article looks at the current situation regarding pet ownership post-separation and the new amendments.
There is currently no “best interest of the pet” test
Separation or divorce can create a whole host of issues, including property division and determining child custody and access arrangements.
It is clear from the current legislation and previous court decisions that property (including pets) and children are treated very differently. Family property is usually equally divided and arrangements regarding children are subject to the best interests of the child test.
Where the parties cannot informally resolve pet ownership issues, courts apply property law principles to determine ownership rather than considering where the best interest of the pet lies.
Courts may take a flexible approach when determining pet ownership disputes
As a result of this approach, the court may order pets to be divided equally or even sold. There is some support, however, for showing flexibility to ensure the welfare of pets. In making an order, courts sometimes consider factors such as who purchased or raised the pet, who exercised care and control of the animal and who paid for the expenses of the animal’s upkeep.
You can read more about determining pet ownership after separation in our previous blog post.
Public consultation revealed inadequacies of the Family Law Act
The Government of British Columbia recently ran a public consultation on modernizing the Family Law Act. The first phase dealt with property division and spousal support.
The consultation responses relating to pet ownership were interesting, with the majority of respondents feeling that the Family Law Act does not adequately address who should receive pets upon separation.
Respondents suggested clarifying the types of agreements and court orders that can be made in relation to pets upon separation. Two-thirds of the responses said that the best interests of the pet should be considered and that the most important factors were whether a partner had abused the pet in the past, which spouse took care of its basic needs and the ability of the parties to continue to care for the pet.
Government introduced the Family Law Amendment Act in response
In response to this consultation, the Government introduced Bill 17, the Family Law Amendment Act 2023 on March 27, 2023. It received royal assent on May 11 and will come into force on a date specified by regulation of the Lieutenant Governor in Council.
The Family Law Amendment Act makes a range of amendments to the Family Law Act, including in relation to pet ownership upon separation. The Attorney General, Hon. Niki Sharma, said:
“Going through a separation or divorce can be an incredibly difficult experience. To help make life easier for couples going through a separation, we’re introducing amendments to the Family Law Act that better reflect the priorities and values of people today, including making sure the important role pets play in families is considered in the separation process.”
The Act makes changes in respect of companion animals
The new provisions of the Family Law Amendment Act do not apply to all animals, only those that are “companion animals.”
The Family Law Amendment Act does not define companion animals but states that guide or service dogs, animals kept as part of a business and animals kept for agricultural purposes are not companion animals.
Spouses may make agreements respecting companion animals
The Family Law Amendment Act amends the Family Law Act to clarify that spouses may make agreements respecting companion animals.
Section 92 of the Family Law Act provides that spouses may make domestic agreements respecting the division of property and debt. The Family Law Amendment Act amends this section to confirm that spouses can agree to jointly own or share possession of a companion animal, or give exclusive ownership or possession of a companion animal to one of them.
The Supreme Court can make orders respecting companion animals
The Family Law Amendment Act also changes section 97 of the Family Law Act to confirm that the Supreme Court can make an order deciding who has ownership of, or right of possession to, property, including a companion animal.
The Family Law Amendment Act adds a list of factors the Court must consider before making such an order. These factors are:
“(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.”
These factors require the Court to consider ‘best interests of the pet’-type considerations like whether a spouse has shown cruelty to the pet. Child parenting issues may also impact pet ownership decisions because the Court has to consider children’s relationship with the animal.
The Family Law Act provides that the Court cannot declare that the spouses jointly own the pet or order them to share possession of it.
Contact Meridian Law Group in Vancouver for Advice on Separation Disputes and Property Division
The experienced family lawyers at Meridian Law Group provide clients with trusted advice on an array of family law issues stemming from a separation or divorce. This includes helping clients resolve property division matters, which can often be a sticking point, including complex issues like family pet ownership. To organize a confidential consultation with a member of our family law team, please call (604) 687-2277 or complete our online form.
