Court makes first “Companion Animals” decision in B.C.

Maggie House- Court makes first “Companion Animals” decision in B.C.– a B.C. Supreme Court Case Review: Sahar Bayat v Omid Mavedati, 2024 BCSC 619Published May 7, 2024

Summary

The B.C.Supreme Court has released its first written decision on the new Companion Animals amendments to the Family Law Act (“FLA”) that came into force in January 2024.  The decision does not appear to have been made in accordance with the law – the judge ruled that the parties had to share custody and decision making, which is specifically prohibited by FLA s. 97(4.2).  The decision itself has some problematic reasoning, including minimizing or dismissing physical violence towards pets, and deferring to the opinion evidence of the Respondent – a veterinarian – about disputed medical facts.

Image Source: Kim Hawkins

The B.C. Supreme Court recently handed down the first written decision on the new “Companion Animal” provisions. (See my previous blog post “Who keeps Fido in the divorce?” if you haven’t already.) 

In the present case, the Claimant, Ms. Bayat, applied to the Supreme Court against her ex-partner Respondent Omid Mavedati seeking sole ownership of a dog named Stella. The resulting decision of Associate Judge Nielsen was to allocate custody jointly between the parties on a “50/50…. week-on/week-off basis” (at para 15). The Court makes a further order that decision making responsibilities was also to be shared (at para 18). The “custody” order was made “on an interim and without prejudice basis” (at para 15). This means that the order is not final, but rather is temporary and the decision will not affect either party’s bid to have the order changed in their favour. 

The new Companion Animal rules specifically state that a court cannot make an order allocating shared possession or ownership of a pet.  Family Law Act s. 97(4.2) states as follows: 

(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.

The Court’s decision in this case directly contradicts the law. While parties may agree to joint ownership and possession of pets (FLA s 92(e) and (f)), the Court cannot impose such an arrangement upon them because of FLA s 97(4.2).

The decision to require the parties to jointly make decisions about the dog is also beyond the four corners of the FLA.  This decision expands the Court’s role to include overseeing pet custody arrangements which would cause absurd results in the courtroom. Family court is messy and backed up enough with child custody battles, and the legislature made clear in FLA s 97(4.2) that the courts are not to expend their limited resources and time on dictating pet parenting arrangements.  

I see this decision as problematic also for people who are survivors of intimate partner violence.  If the court can make joint pet custody arrangements, this essentially gives abusers another avenue by which to prolong contact with their target.

Also problematic is that the judge appears to defer to the opinion of the Respondent in his reasoning because of the occupational position that the Respondent holds (veterinarian).  At paragraph 8 the Judge states: 

[8] [….] Although not in the affidavit evidence, the respondent has explained the delay in having Stella spayed, and it involved Stella going into heat, and the difficulties and risks that would entail if surgery was performed at that time. The respondent is a veterinarian, and I accept that evidence. [emphasis added].

There is a specific manner in which expert evidence must be presented to the court, and this is not it.  Allowing backdoor expert opinion evidence like this is unfair to the Claimant who does not have the benefit of the procedural safeguards through the normal process of appointing experts. Furthermore, experts should not be advocates and it is impossible for the Respondent to not be biased in his presentation of medical evidence.

The Court also appears to disregard physical violence towards the dog in its decision.  Here is what the Court says about an allegation that the Respondent hit the dog:

[12]      There is a suggestion that the respondent struck Stella after it peed on the floor. Again, I am not prepared to attribute this to any lack of concern for the dog, or anything untoward, even if that event did take place in the circumstances described.

FLA 97(4.1) provides the factors that a Court must consider in making a determination on possession and ownership of a pet.  FLA 97(4.1): 

(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.

Although “cruelty” is not defined here, I cannot image that physical violence would not be included in its meaning. The court does not make any finding as to whether the alleged event of hitting the dog occurred, though the judge seems to entertain the idea that even had they found the event did occur, this physical violence may have been tolerated or acceptable to them. I don’t think this accords with the intent of the companion animal provisions of the FLA. 

What the court got right:

Although I think that the decision is wrong and the reasoning problematic, there are parts of the reasoning that show the Court’s evolution in its attitudes to pets.  The Court acknowledges the purpose of the recent Companion Animal amendments as addressing the cultural shift of viewing animals as more than a mere chattel and of having sentience (at para 14). 

The Court properly considers other factors under FLA 97(4.1).  For example, the Court considers the relative strength of the parties’ proprietary claims encapsulated by FLA 97(4.1)(a) and (b) (at paragraphs 6 and 7). 

Lastly, the Court does also appear to engage in some assessment of the best interests of the animal considering the dogs’ health and vaccination history as well as appropriate bedding for the dog (at paragraphs 8 to 11).

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