Recent amendments to the Family Law Act mean that companion animals are no longer treated as property to be divided when couples separate or divorce: Family Law Act, SBC 2011, c 25 (the “Act”). Typically, one party would end up keeping the pet, with the court looking at factors such as who purchased the animal or who could prove ownership.
Changes to the Act mean that “companion animals”, which do not include guide dogs, or animals kept for business or agricultural purposes (s. 1), are now treated differently under the Act when couples separate or divorce. The approach the courts must now use in deciding who gets a pet upon separation or divorce is much more in line with a “custody” approach, where the best interests of the pet are considered.
Specifically, the court must consider the following factors, as noted under s 97(4.1) of the Act:
- The circumstances under 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;
- any other circumstances the court considers relevant.
This approach acknowledges that pets can be an integral part of families and allows the court to take a much more holistic approach when determining which spouse should keep the pet. Of note, the Act states that courts cannot order that spouses jointly own the pet or require spouses to share possession of it (s. 97(4.2)). This means that one spouse will ultimately own the pet outright.
This does not mean that separating spouses cannot agree to share ownership of a pet; the Act gives parties the right to enter into agreements respecting companion animals and specifically notes that parties can agree to jointly own or share possession of a companion animal (s. 92).
If you would like to learn more about how the new “pet custody” rules affect you, please reach out to us at 250-374-3344. Whether you would like to negotiate a separation agreement that deals with ownership of your beloved pet, or would like to ask the court to determine the issue for you, our office is happy to help.
Disclaimer: This is not legal advice