Dealing With Pets Under British Columbia’s Family Law Act

The recent changes to the Family Law Act dealing with pets in the context of family law disputes received a lot of attention and were widely celebrated. However, they didn’t do much to alter the fundamental treatment of pets as chattel. This article provides a brief digest and analysis of those amendments.

On 15 January 2024, the portions of British Columbia’s Family Law Act dealing with the division of property were amended to address pets, the idea being that people have important emotional relationships with pets and post-separation conflict might be reduced if clear guidelines were provided. Prior to these amendments, pets were treated as chattels with the same ontological and legal status as couches, carpets and cars. Claims to possession of a pet were usually determined on the basis of ownership (Who bought the cat in the first place? Whose name was on the registration form?), habitual care (Who was primarily responsible for walking the dog? Who took the hamster to the vet?), or financial responsibility (Who paid for kenneling costs? Who paid for the vet? Who usually bought the kibble?).

Much as some people might have liked it, the courts would not and could not make orders for the shared parenting of a pet, as such would amount to an order providing an alternating right of possession of a couch. The same analysis generally applied to the sharing of the future costs of a pet, which would be the equivalent of an order requiring someone to pay for the ongoing maintenance of the car retained by their former spouse. The new rules don’t actually change this approach.

Definition

First, the animals the act deals with are “companion animals,” not “pets.” These are defined at section 1 as “an animal that is kept primarily for the purposes of companionship.” Section 3.1 exempts guide dogs and service dogs from the definition, as well as animals kept as part of a business or for agricultural purposes, thus ducking clever arguments that someone’s cattle or goats are companion animals rather than assets.

Scope of agreements

Section 92 of the act allows spouses to make agreements providing that: they will jointly own a companion animal; they will share possession of a companion animal; or, just one of them will have exclusive ownership or possession of the animal.

While it’s nice to have language in the legislation expressly permitting people to make agreements about pets, there’s nothing particularly new about the concept. People have always been able to form private contracts dealing with their chattels howsoever they might wish. If spouses wished to agree that they would share their couch on a week-on/week-off basis, nothing but practicality and common sense was stopping them from doing so.

Scope of orders

Under section 97(2), the Supreme Court has the express jurisdiction to make declaratory orders about the ownership and possession of companion animals. There’s nothing new about this either; the Supreme Court has always had the jurisdiction to make orders about the ownership and possession of chattels. However, under section 97(4), the court may also make orders about the ownership and possession pets that qualify as “excluded property” – typically because the property was brought into the relationship or gifted to a spouse during the relationship – which would normally only be permitted in circumstances of “significant unfairness” under section 96.

What is new are the provisions of section 97(4.1) which prescribes a list of factors the court must take into account in making orders about pets. These include how the pet was acquired, who cared for the pet, the presence of family violence, a spouse’s cruelty toward the pet, any relationship between children and the pet, and the ability of the spouses to care for the needs of the pet. While many of these factors are imported from the previous case law on the ownership and possession of pets, it is helpful to have a consolidated list of considerations, especially one which includes family violence and the importance of the pet to any children.

The kicker, however, comes in section 97(4.2), which merely restates the status quo ante. The court may not make orders that spouses “jointly own the companion animal” or “share possession of the companion animal.” In other words, the court still cannot make orders providing an alternating right of possession of a pet. Shared parenting of pets continues to be off the table. In a similar vein, section 97(4.3) sensibly provides that the court may not make orders for the “unequal division” of pets, which I suspect would be unnecessarily messy and significantly diminish their value.

Provincial court

The other genuinely novel change concerns the jurisdiction of the Provincial Court. The British Columbia Provincial Court normally has no authority to make orders concerning family property and excluded property. The amended section 193 expressly allows the court to make orders respecting the ownership and possession of companion animals, on the same terms as the Supreme Court.

Summary

The majority of the amendments to the Family Law Act concerning pets really don’t do a great deal to change how pets were handled prior to those amendments. Spouses can make agreements for the sharing of their pets, as they have always been able. The court can make orders for the exclusive ownership and possession of pets, as it has always been able, and it continues to be unable to make orders for the sharing of the ownership or possession of those pets.

The two important innovations introduced by the amendments are the expansion of the jurisdiction of the Provincial Court, the province’s most accessible court, to make orders about pets, and the addition of the special list of factors the court must consider when making decisions about pets at section 97(4.1).