On January 24, 2024, amendments (changes) were made to the Family Law Act (FLA) to reflect the long-held sentiment that pets are members of the family. It is no wonder why animals can become part of the dispute during a separation; the prospect of a person being separated from their pet can cause fear and distress for individuals. Before these changes took place, the decisions about pet custody were made based on other types of personal property. Following these changes, the courts now adopt a more holistic approach when looking into what will happen to a pet after separation. This new approach is similar to how the courts tend to decide parenting arrangements for children, focusing on the best interests of the pet.

The Past: Stuck in the Property Analysis:

Before the January 2024 changes, the courts' standard views on a pet was similar to personal property. That view was to give ownership of pets to the party who could properly care for that pet. In the case of FKL v DMAT , the courts gave an example how they viewed pets saying that:

^{“while spouses may be deeply attached to a pet, in law the pet is personal property of one or the other or both spouses…deciding which spouse will have the pet on termination of a spousal relationship is a problem of division of assets”.} 

Despite the above example, some courts did make orders that captured how pets we reviewed more as family members rather than property. For example in the case of Bain v. Brown, the Judge made a temporary order giving the Respondent access to the family dogs for a specific period of time. In another case, Chin v. Sutherland, the court found that it was not appropriate to order the sale of the dog. This was because the dog had more sentimental value rather than financial value to the parties. The court declared the dog to be family property and ordered the parties to make reasonable efforts to develop a care arrangement for the pet.

Moving Forward with Compassion:

The changes made to the FLA on pets now defines them as “companion animals”. The FLA now lets the parties make agreements about possession and ownership of companion animals. It also allows the courts to make orders around companion animals, and factors that must be considered relation to companion animals.

What is considered a “companion animal”?

Under section 1 of the FLA pets referred to as "companion animals are defined as “an animal that is kept primarily for the purpose of companionship”.

Please note: this definition does not include animals used as a service animal (such as a service dog), animals that are a part of a business (such as animals at a pet shop), and animals used for agricultural purposes (such as horses on a farm).

Agreements respecting companion animals- s.92:

Under section 92 of the FLA, the courts give parties the power to make agreements about how pets will be possessed and owned by separated spouses. It indicates three scenarios that around which agreements for the ownership of pets can be made:

• joint ownership of a companion animal;
• shared possession of a companion animal; and
• giving exclusive ownership or possession of a companion animal to one of the spouses.

Jurisdiction and factors considered by the courts- s.97

Under section 97 of the FLA, the court can make orders to declare who has ownership of or right of possession to property including pets. There are also eight factors that courts will consider in making orders respecting companion animals:

• 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 souse to care for the basic needs of the companion animal; and
• any other circumstances the court considers relevant.

What does this mean:

Since these changes have come into effect, the courts have not had many opportunities to make orders based on pets. For anyone who wants to understand what orders can be made around pets can look at the recent case of Bayat v. Mavedati. This case involved a golden retriever named Stella, purchased during the parties’ relationship. After the parties separated, the Claimant made a court application asking for exclusive care of Stella. The court applied the factors set out in s.97(4.1) of the FLA, and stated that Stella’s custody should be shared between the parties on a temporary basis. The court further stated that decision-making responsibility of Stella would be shared between the parties. They used the same formula similar to how decisions are made for children under the FLA. The judge stated that:

^{“the recent amendments to the Family Law Act essentially puts the ownership of a companion animal, such as Stella, in the context of something that goes beyond ownership of a chattel”.}

One thing that remains unclear is how this decision can be aligned with section 97(4.2) of the FLA. This section prevents the courts from making orders for joint ownership of companion animals. In Bayat, that section did not apply to the temporary orders made around the custody of Stella.

As the case law in this area continues to develop, it will be interesting to see how judges will make orders in the future around the day-to-day care of pets. It will also be interesting if there will be conflicts and issues similar to child custody disputes.

How we can help:

At Kitsilano Family Law, we can help you learn about your rights, responsibilities, and legal options for caring for your furry friends following a separation. Contact us at contact@kitsfamilylaw.com to book a consultation with us.

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Authors: Amber Cheema and Isa Nafissi

Contributor: Jennifer Buckley