Who Gets The BC Family Pet On Separation? Our top rated Bc Family Lawyers get asked this question a lot. In today’s blog by Sophie Bartholomew, we answer this question taking into account new Family Law Act laws for companion animals.
Who Gets The BC Family Pet On Separation?
What Happens to the Family Pet on Separation? – Family Law (or paw) Act Amendments
Separation and divorce can be a difficult time for parties and children. Sometimes, having the company of a well-loved pet can make all the difference in such tough times. What happens to pets when parties separate is becoming more relevant, particularly given the uptick of couples and families getting pets during the Covid-19 pandemic. New legislation helps clarify the answer to: Who Gets The BC Family Pet On Separation?
On October 3, 2023 it was confirmed that from January 24, 2024, specific provisions will be included in the Family Law Act (the “FLA”) in relation to ‘Companion Animals’. These amendments include clarifying who can make agreements and orders about companion animals, defining “companion animals”, identifying factors to consider in making these agreements or orders and updates to the relevant court practices.
BC Attorney General Niki Sharma hopes the changes will clarify a family pets’ vital role in family units and provide more guidance for people and judges involved in animal “custody” disputes.
Who Gets The BC Family Pet On Separation?
What is a Companion Animal?
In summary, a companion animal is defined under the FLA amendments as “an animal that is kept primarily for the purpose of companionship”. This specifically excludes guide dogs or service dogs, animals kept as part of a business, or agricultural animals (FLA 3.1).
What can we Agree or the Court Order?
Amendments to section 92 FLA clarifies that spouses may make agreements respecting companion animals to include that they own the Companion Animal jointly, that they share possession of the Companion Animal or that one of the parties can own or have possession of the Companion Animal.
Amendments to section 97 FLA clarifies that a court may make orders respecting companion animals to include who has ownership of, or possession of a Companion Animal, even if the Companion Animal falls under ‘excluded property’ which is not normally not divided on separation. It adds factors that a court must consider before making an order respecting a companion animal. These factors are:
(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; and
(h) any other circumstances the court considers relevant.
Specifically, unlike agreements which allow Companion Animals to be shared (s.92), the Court cannot order that the parties jointly own the Companion Animal, or to share possession of the Companion Animal (s.97(d)(4.2)). The court also cannot order unequal division respecting a Companion Animal (s.97(d)(4.3)).
S.193 Family Law Act, allows the provincial court to be able to make orders respecting Companion Animals.
What Do The New BC Companion Animals and Separation Laws Mean?
In practice, the changes have not yet come into force. We will see after January 31, 2024 how these amendments get interpreted in the case law. However, from the outset it is clear that more focus is being put on the importance of pets in a household. We anticipate that moving forwards agreements, when parties or spouses first get a pet, may become more common setting out what is expected if the relationship ends. In any event, if you cannot agree what happens to the pet, a judge or master will have to decide by looking at the relevant factors set out in the Family Law Act. If a judge or master has to decide, you will not be sharing the pet; one person will win and one will lose. If that isn’t motivation to try and agree who will keep the pet, or terms to share the pet if you separate, then what is?
Contact our family lawyers immediately if you have a Who Gets The BC Family Pet On Separation? dispute.
By Sophie Bartholomew