Pet Custody in BC: New Family Law Act Rules

The parties, who began cohabitating on April 1, 2020, and separated on February 9, 2023, had differing views on the duration of their relationship. The claimant, a nurse, and the respondent, a veterinarian, presented a unique background with direct implications on Stella's care. The court scrutinized the purchase and care of Stella, noting disputes over ownership and contributions to her wellbeing.

The new BC pet custody law

The case was decided under the companion animal amendments to the Family Law Act, introduced by Bill 17 — Family Law Amendment Act, 2023 and brought into force January 15, 2024. The factors are set out in section 97(4.1), not section 7 (the oral reasons in Bayat refer to the amending section number rather than the section of the Act as it now reads). Section 97(4.1) provides that in determining whether to make an order respecting a companion animal, the Supreme Court must consider:

• 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;
• any other circumstances the court considers relevant.

Two related provisions are worth knowing. Section 97(4.2) states 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." Spouses can, however, agree to arrangements a court cannot order: section 92 expressly allows spouses to agree to jointly own a companion animal, to share possession of one, or to give exclusive ownership or possession to one spouse. Section 92 is expressly "subject to section 93", so an agreement of that kind can still be set aside by the Supreme Court on the grounds listed in section 93: it is durable, not bulletproof. That gap between what a court may order and what spouses may agree to is a strong practical reason to try to settle pet disputes rather than litigate them.

What the court decided for Stella

During the proceedings, the court reviewed evidence of financial contributions by the claimant towards Stella's purchase and ongoing care, including veterinary expenses. Despite allegations of neglect and cruelty by the respondent, the court found no substantial evidence to support these claims. The court acknowledged the complexities surrounding decisions like vaccinations and social interactions for Stella, attributed to the respondent's professional judgment as a veterinarian.

Ultimately, the court recognized the deep affection both parties had for Stella and the significant legal expenses incurred during the dispute. Emphasizing the sentient nature of companion animals as reflected in the amended law, the court ordered, on an interim, without-prejudice basis, that the parties share the custody of Stella 50/50 on a week-on, week-off basis, subject to further agreement or a court order. The claimant's request for exclusive care was refused, and because success was mixed each party was left to bear their own costs. One caution about relying on this outcome: section 97(4.2) provides that an order respecting a companion animal must not require the spouses to share possession of it. Bayat was decided on an interim, without-prejudice basis, and the shared-possession arrangement should not be relied on as authority that a court will order spouses to share possession of a pet.

The dialogue between the court and the respondent also highlighted ongoing concerns about decision-making responsibilities and financial contributions toward Stella's care. The court opted for shared decision-making responsibilities and deferred the discussion of financial adjustments to a later date, suggesting that the parties should ideally resolve such issues outside of court.

This case underscores the evolving legal landscape regarding pets in family law. As the court put it, the amendments place the ownership of a companion animal in a context that goes beyond ownership of a chattel, and the sentience of the animal is recognized to the extent the statutory criteria reflect it. Note that the Act does not import a "best interests" test for pets the way it does for children. Section 97(4.1) sets out a list of factors the court must consider, and nothing more. The case also illustrates the potential complexities and emotional stakes involved in these disputes.

These companion-animal provisions do not apply to service animals such as guide dogs, or to farm livestock. The definition of "companion animal" in the Act excludes them.

Because a court cannot order joint ownership or shared possession of a pet, but separating spouses can agree to it, pet disputes are often better suited to a negotiated resolution. See how mediation works at SiLaw Group.

Contact SiLaw Group Lawyers if you wish to discuss your issue relating to your companion animal. We offer free consultations from our Surrey based office and remain available for Zoom and telephone calls throughout British Columbia. Book a free consultation or call us at (778) 381-9977.