Changes in How Pets are Treated in Family Law Proceedings

A groundbreaking change in the British Columbia’s Family Law Act came into force early January of this year concerning the way the law deals with pets in divorce or separation proceedings. When determining who will have possession of the pet, the BC courts will consider the following three factors: the pet’s best interests, the caretaker of the pet, and the pet’s relationship with children. To take it one step further, if parties have arrived at an agreement amongst themselves for sharing ownership or for one party to have exclusive ownership of a pet, the courts may uphold that agreement. The amendment to the legislation has also reclassified pets as “companion animals”. Notably, guide dogs, service dogs, and farm animals are not included under this umbrella term.

While several BC lawyers are of the view that this is a first step in the right direction, some state that the amendments do not go far enough. When determining the best interests of the pet, the courts are also called upon to consider whether the party who has possession of the pet can ensure its “basic necessities”. However, some argue that such unspecific and vague terminology could encompass only the bare minimum such as leaving a bowl of water and food for their pet. Such a regime then fails to ensure that the pet has a healthy social life amongst other factors that may help them thrive.

One of the limitations that the amendment created is that while the BC Supreme Court can uphold previous agreements made by parties, it cannot order shared possession of the pet. However, the legislation allows for the Provincial Court to deal with issues regarding pet ‘custody’. Experienced lawyers in this area of law have reasoned that the BC courts could also order shared custody of an animal under the Small Claims Act as an alternative. Similar to the factors above, in determining possession of the pet, the civil courts will consider the following factors: how the pet was acquired, each party’s involvement with the pet, the history and risk of family violence, the threat of animal cruelty, the pet’s relationship with children, and each party’s willingness to take care of the pet.

While the amendments made are revolutionary within Canadian legislation, there are further changes that can be made. However, as a first step, the amendment has enforced the recognition of pets as being a part of society and as part of families.

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