Pets can be a cherished, deeply important part of the family. What happens to pets during separation or divorce? Who gets to keep the cat, dog, turtle, or bird? Let’s have a look at the new additions to BC’s Family Law Act that address ownership and possession of pets on separation.
Division of pets on divorce
It may surprise you to learn that historically, BC law has treated pets like property. BC courts would not make an order for shared ownership of a pet when a couple separated nor would the court make an order for shared time with a pet in the way that it does for children. Instead, the law treated family pets no differently than any other piece of property, like a house, car, or piece of furniture.
There was little guidance for judges or for separating spouses on ownership and possession of pets which made matters unpredictable for pet owners. If asked to decide, the court tended to look at factors such as who bought the animal and who paid for its food and vet bills. The court would make an order for exclusive ownership to one spouse. It did not matter if the other spouse had a close relationship with the pet nor did the court factor in whether the children were particularly attached to the animal.
Modernization of pet custody laws in BC
Groundbreaking changes to the Family Law Act were made in May 2023 and are expected to come into force by regulation in the near future. The changes, which address the division of “companion animals” between separating couples, are intended to provide clarity and guidance on how to handle pet custody disputes. BC’s new pet custody laws are the first of their kind in Canada.
How does the new pet custody law work?
The first thing the new pet custody law does is affirm that separating couples can make an agreement regarding possession and ownership of a “companion animal.” Section 92 of the Family Law Act will be amended to state that on separation, spouses can agree to:
jointly own a companion animal;
share possession of a companion animal; and/or
give exclusive ownership or possession of a companion animal to one of the
spouses.
If the separating couple can not come to an agreement on possession and ownership of a pet, they can ask the court to decide this issue for them. Section 97 of the Family Law Act will be amended to include the following factors that a judge must consider when making an order respecting a companion animal:
the circumstances in which the companion animal was acquired;
the extent to which each spouse cared for the companion animal;
any history of family violence;
the risk of family violence;
a spouse's cruelty, or threat of cruelty, toward an animal;
the relationship that a child has with the companion animal;
the willingness and ability of each spouse to care for the basic needs of the companion animal; and
any other circumstances the court considers relevant.
The new law is also clear that BC judges can not order joint custody of a pet and can not make an order requiring spouses to share custody of a pet. Section 97 of the Family Law Act will specifically state that 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.
In light of this limitation on judges’ authority in pet “custody” cases, it is highly recommended that separating spouses negotiate a comprehensive pet custody agreementof their own if they want to share possession. A skilled family lawyer can help you reach a legally enforceable written agreement that deals with all issues, including ownership, time with your pet, financial responsibilities with respect to the pet and who has the authority to make medical decisions in relation to ongoing care and/or end of life care for your pet.
Do you need advice on how to deal with pets on divorce in BC?
Whether you are thinking about separating or have already separated from your spouse, many issues need to be resolved, including care and ownership of family pets. The new amendments to BC’s Family Law Act are a welcome change. Keep in mind that the rules in the Family Law Act are the starting point. You and your spouse can agree to something different by negotiating a Separation Agreement that deals with pet custody in a way that works for both of you and that protects your pet’s needs.
No matter what family law questions you have or issues you might be facing, you will receive trusted advice at the office of Valerie M. Little. For more information about Valerie’s family law office or to schedule a consultation with Valerie, please call the law office of Valerie M. Little today. Valerie has the experience, knowledge and willingness to assist you in resolving your family law problem.