All across Canada, the courts and family lawyers have long grappled with how to address the division of pets between separating and divorcing couples. On March 27, 2023, the Honourable N. Sharma, Attorney General for British Columbia, proposed changes to several sections of the Family Law Act through Bill 17, the Family Law Amendment Act, 2023.
Historically, the courts have treated pets as personal property, which were up to division at separation. Practically speaking, the Supreme Court of British Columbia could not give effect to the presumption of an undivided half interest in pets, unlike other family property, so one party ended up keeping the family pet.
While the courts have acknowledged spouses may be deeply attached to a pet, they did not have jurisdiction to approach the division of pets as a problem of "custody" (much less "parenting") – see FKL v DMAT, 2020 BCSC 1296.
The proposed changes to section 3.1 define what is not a "companion animal" – namely guide dogs, animals kept as part of a business, or animals kept for agricultural purposes.
The next proposed changes are to sections 92, 97, and most importantly, the addition of section 97(4.1), which reads:
(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.
(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.
(4.3) Sections 95 [unequal division by order] and 96 do not apply to the making of an order respecting a companion animal.
It is important to note that the verbiage of section 97(4.1) closely resembles that in section 37 [Best Interests of Child] of the Family Law Act.
Instead of looking at factors such as the receipt for purchase of the companion animal, veterinary bills, proof of ownership and the like, the Supreme Court now must consider the history of care, history of family violence, cruelty towards the animal, relationship with the companion animal, and such other factors that "humanize" the division of the family pet(s).
For many families, the proposed amendments are welcome editions. However, will the separating parties now be required or encouraged to cite expert evidence akin to a section 211 report? Will the Provincial Court of BC ever have jurisdiction over pets if the pets are still viewed as "property"? Will these amendments to the Family Law Act complicate legal and factual analyses for families?
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