Maggie House- Published November 15, 2023
How pets are treated in family law proceedings is an issue dear to my heart. My animals are my family. I love, love, love dogs, cats, bunnies, and all of the furry critters that will let me pet them (and even the ones who don’t). I understand how pets – as cherished and loved members of our families – can become the subject of hotly-disputed battles when partners separate. So, who keeps Fido when a relationship ends? Changes to our Province’s Family Law Act, coming into force on January 15, 2024, introduce new factors that judges must consider in making a determination about companion animals.
THE CURRENT STATE OF THE LAW
Property division in family law matters is the exclusive domain of the Supreme Court of B.C. Traditionally, pets have been treated like any other “property”. Currently, a family law dispute about pets would require an application to the B.C. Supreme Court for a determination about who gets to keep the animals.
Treating pets like any other property can be problematic for a lot of reasons, but – as pet owners know – our dogs, cats, bunnies and other furry friends hold much more value and sentiment than a chair or a car or other piece of “property” to be divided between separating partners. Pets are living, breathing creatures with intrinsic worth, with nuanced individual personalities, and capable of forging deep and meaningful relationships with their guardians. So the way we have been doing things – by applying a purely proprietary lens – can be inappropriate and insensitive. Under the current regime, the court’s assessment of allocating ownership and possession of pets after separation can be boiled down to: who has the stronger claim to the property?
Pets pre-existing the commencement of a marriage or marriage-like relationship are presumptively excluded from “family property”, and will likely belong to the person who brought the pet into the relationship. Pets that are family property – those which were acquired during the course of the relationship – are subject to “division” or, rather, who gets possession and ownership of the pet. Courts cannot and will not engage in split-ownership or “custody” arrangements for pets. It is an all-or-nothing approach. See for example F.K.L v. D.M.A.T., 2020 BCSC 1296 at para 141, and Brown v Larochelle, 2017 BCPC 115 at para 14.
There are a number of factors that courts will consider in determining who gets to keep the family pet. The Ontario Superior Court case Coates v Dickson, 2021 ONSC 992 at para. 8, summarises these considerations:
- Was the pet owned or possessed by one of the parties before the relationship?
- Was there any agreement about who owned the animal made at the time the pet was acquired or afterwards?
- What was the nature of the relationships between the parties?
- Who paid for the animal’s purchase (or adoption fee)?
- Who exercised, fed, and took general responsibility for the animal?
- Who had the burden of care and comfort for the animal?
- Who paid for the animal’s food, toys, accessories and veterinary care?
- Was the animal a gift to one spouse?
- What happened to the animal after the relationship ended?
- Is there any other evidence that tends to prove ownership of the animal?
Another Ontario Superior court case, Duboff v Simpson, 2021 ONSC 4970, identified some of the types of specific evidence that may support a spouse’s claim to ownership of the family pet:
- The pet’s microchip and/or tattoo information is registered in your name;
- The pet’s is licensed with your local municipal government in your name;
- The pet’s veterinary records are in your name;
- The pet’s medical insurance policy and/or claim records are in your name;
- The adoption application and/or adoption contract are made in your name;
- If your pet was imported internationally, the Canada Border Service import records and/or receipts for fee payment are in your name;
- You have a receipt for the animal’s purchase price or adoption fee;
- You have receipts for the animal’s veterinary expenses paid from your own bank account/credit card;
- You have receipts for the animal’s routine expenses like grooming, boarding, dog walker, and dog food and other supplies.
THE AMENDMENTS TO B.C’S FAMILY LAW ACT
Starting in January 2024, the FLA will include provisions specific to determinations about “Companion Animals”.
Provincial Court judges will now have the jurisdiction to make orders about family pets under the FLA. Parties will be able to apply in either Provincial or Supreme court to ask for a determination about family pets, whereas before these types of orders could only be made by the Supreme Court. One good thing about this change is that Provincial Court is generally more accessible to self-representing litigants. Supreme Court can be onerous, confusing and expensive, so this amendment may create a more accessible process for litigants of modest means.
The upcoming changes introduce specific factors judges “must” consider when making determinations about Companion Animals. The new FLA Section 97(4.1) provides the following:
(4.1) In determining whether to make an order under subsection (1) respecting a companion animal, the Supreme Court must consider the following factors:
(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.
Section 97(4.2) cements the common law principle that courts can’t compel custody arrangements about pets into a statutory requirement:
(4.2) An order respecting a companion animal must not
(a) declare that the spouses jointly own the companion animal, or
(b) require the spouses to share possession of the companion animal.
However, sections 92(5)(e) and (f) make clear that spouses may agree to have shared ownership and/or possession of a companion animal.
FLA s97(4.1) introduces into the court’s determination of pet ownership the mandatory consideration of the pet’s best interests:
FLA ss. 97(4.1)(c), (d), and (e) include specific consideration of the animal’s safety. Not only must the court consider whether the animal itself was a victim or likely to be a victim of abuse by a party, but the court must also consider whether any family violence occurred or is likely to occur by or between the human members of the family. As many scholars will tell you, the link between pet abuse and family violence is very well established. These legislative changes implicitly recognize this well-known link.
FLA s97(4.1)(g) considers the parties’ respective abilities and willingness to care for the companion animal’s basic needs.
FLA s. 97(4.1) (f), considers the pet’s relationship with others and, specifically, the relationship between a pet and child (or children).
The law acknowledges dogs are not equivalent to chairs or cars or candlesticks! Hooray! Problem solved! Right? Maybe, maybe not, or maybe somewhere in between.
Sections 97(4.1)(a) and (b) include mandatory consideration of which party has a stronger property claim. (Sound familiar?) The new law encapsulates the traditional principles of how courts are currently handling animals in family law disputes. Traditional ownership considerations are almost certainly going to remain front and centre in companion animal disputes. However, the traditional approach will be augmented by the new mandatory requirement to take into account the animal’s safety and well-being, and a child’s relationship to the animal.
This might get messy! We now have not just two competing interests (the property interest of each of the two parties to the dispute), but a third competing interest (the interest an animal has in its own well-being) and even more, a fourth competing interest (the interest of a child in that child’s relationship with the animal). How will judges weigh these competing interests against one another? Time will tell, and I am very interested to see how these new provisions will play out in the courtroom.
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