FAMILY PETS: WHAT DOES THE FAMILY LAW ACT HAVE TO SAY ABOUT THEM?

Do you have a pet together with your ex? Are you worried about who will get custody of them after the separation? In the past, deciding who gets to keep the pet was the exclusive jurisdiction of the Supreme court. However, following changes to the law on January 15, 2024, the Provincial court can also make an order respecting companion animals. Keep reading to understand the effect of the new changes and what this means for you and your beloved pets.

What is a companion animal?

Under Section 1 of the Family Law Act, a companion animal is defined as "an animal that is kept primarily for the purpose of companionship," what we would normally refer to as a pet.*

*Note that this does not include guide dogs, service dogs or any animals that are kept as livestock for a business.

What does this mean for me?

If you and your spouse[1] are separating and can't decide who gets to keep your pet, you can ask the court to help you decide who will have possession and ownership of your companion animal.

The Family Law Act has laid out a number of factors  (Section 97 (4.1)) which the court must consider in coming to this decision, including:

·       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.

Importantly, Section 97 (4.2) of the Family Law Act specifies that a final order[2] respecting a companion animal must NOT "declare that the spouses jointly own the companion animal or require the spouses to share possession of the companion animal."

This is something to keep in mind if you decide to ask the court to make a final decision regarding who gets ownership and possession of your companion animal: the court will have to decide in favour of one of the parties. 

Written Agreement

Note that under Section 92 of the Family Law Act, you and your spouse can also make your own written agreement about who gets to keep your companion animal. In a written agreement, you can agree to joint ownership of the companion animal, to share possession, or that one of you has exclusive ownership of the companion animal.

So, if you think you and your partner can work out an agreement between yourselves or with the help of a mediator, that’s always another option!

[1] You are considered a spouse under the Family Law Act if you are legally married or if you have lived together in a marriage-like relationship for at least two years. If you’re not a spouse under the Family Law Act, you might consider going to the Civil Resolution Tribunal or attempting to work out the dispute yourself.

[2] However, as we see in Bayat v Mavedati, 2024 BCSC 619, the court can make an interim order for shared ownership while the court action is ongoing. In that case, the court made an interim order allowing the parties to share custody of their dog until the trial was over and a final order was made.