The B.C. government has taken the reins (or is it the leash?) on pet custody battles in the Family Law realm.
It recently announced proposed amendments to the province’s Family Law Act, that would provide clear guidance to litigants and courts on how disputes over family pets are to be resolved. In particular, the changes aim to help separated and divorcing couples resolve any contention over who gets to keep a beloved animal after the split.
The changes were announced on March 27, 2023 as part of Bill 17, the Family Law Amendment Act, 2023. Although they are not yet in force, they would add a new definition of “companion animal” – which means an animal kept primarily for the purposes of companionship. (And this definition expressly excludes guide or service dogs, animals kept as part of a business, and animals kept for agricultural purposes).
From a legal standpoint, the conceptual underpinnings are ground-breaking: The legislation would make it clear that in a divorce or separation, pets are not to be treated just like any other tangible property (like furniture). Instead, they are essentially human-like stakeholders in the outcome of the family separation.
This means that when deciding who gets custody of a pet in a divorce, courts would be required to consider the best interests of both the animal itself as well as family members. This assessment will require the courts to consider numerous factors, such as:
- The circumstances in which the pet was acquired;
- The extent to which each spouse cared for the pet in the past;
- Any history of family violence;
- The risk of family violence;
- A spouse’s cruelty, or threat of cruelty, toward an animal; and
- The willingness and ability of each spouse to care for the basic needs of the animal in the future.
Importantly, when making pet custody orders a court would also need to consider the relationship that any children of the family have with the animal.
The proposed changes also allow for a do-it-yourself component: Former couples are allowed and encouraged to reach their own agreements on how time with the family should be divided post-split. They might choose joint or shared possession, or else an arrangement where only one of them is entitled to exclusive possession or ownership. If a consensus cannot be reached, they can always apply to a court for a formal pet custody order. (However in this kind of scenario the court is precluded from making an order for joint ownership or shared possession).
These pet-friendly changes to the Family Law Act – if passed – will make B.C. the first Canadian province or territory to tackle the contentious issue of how cherished pets should be dealt with after a relationship ends.
Should Ontario adopt a similar approach? What are your thoughts?
