Victoria Shroff says proposed changes would consider what is best for pets in disputes
Proposed amendments in British Columbia family law that would make custody battles over pets more family-friendly and consider what is best for the animal is “game-changing,” says Vancouver-based animal rights lawyer Victoria Shroff, going a long way towards reversing the mindset that pets are “someone and not something.”
The suggested changes would clarify pets' vital role in families and provide more guidance for people and judges involved in animal custody disputes, BC Attorney General Niki Sharma said when announcing the proposed amendments in March.
The amendments would require the consideration of factors in pet custody disputes, including each person’s ability and willingness to care for a pet, the relationship a child has with the animal, and the risk of family violence or threat of cruelty, Sharma said.
Shroff notes that custody disputes over pets are generally settled as property assets. However, the amendments, if passed, would consider the relationship of the pet to the family and what would be in the pet’s best interests, says Shroff.
She noted a recent Nova Scotia small claims court decision MacKinnon v. MacKinnon. The parties purchased Brixton, a golden retriever, together in August 2021 but broke up in May 2022. For a while, there was an agreement for each to have equal time with the dog, settling on a one-week on, one-week off schedule. However, Emmalee MacKinnon decided the arrangement was not working and kept Brixton. Her ex, Ryan MacKinnon, filed a claim in September 2022 to get the dog back.
Emmalee argued that she was the one who found and initially dealt with the breeder and that she did most of the training with Brixton. However, Ryan provided receipts that indicate it was he who purchased the dog. The defendant, in response, claims the ownership paperwork did not show her name because, at the time, she asked Ryan to sign the paperwork while she held the dog.
However, in the end, the adjudicator decided in favour of Ryan because he “has the stronger right of ownership” of Brixton.
While the proposed amendments in the BC family law act stop short of explicitly saying that animals are not property, Shroff says they look at the “relational aspects” of animals in the family “rather than as a commodity.”
“This approach accomplishes a couple of things,” she says. “One, that animals are valued members of a family. And two, it’s not as easy to decide who ends up with the family pet as looking at whose name is on the bill of sale or adoption papers.”
Shroff describes this approach as “groundbreaking” and noted that these proposed changes are the first such laws to be introduced in Canada.
She also says that looking at factors such as the risk of family violence and its impact on pets is also important. “Having a provision there that would help sever the relationship, rather than keeping the thread going, is important because sometimes [the family pet] is the only thing linking the two in a relationship.”
The idea behind the proposed changes is not for more people to come to court “but for people to be able to settle their differences,” Shroff says.
“But if people go to court, they have to be warned that no order will come down that will say spouses can jointly own their companion animals. And so that’s important for people to know that one person will go home unhappy.” The amendments provide more guidance to judges when determining how to address the ownership and possession of pets.
“So, we’re still talking about ownership or possession, but we’re talking about it with different considerations and factors that weren’t explicitly set out before.”
Shroff says these cases are often “highly emotionally charged,” so settling them before they end up in court “allows for considering what is in the animal's best interests in a way that I couldn’t do if the dispute went to court.” The amendments will give judges more discretion in that regard.
As people have fewer children, there are more cases where “fur babies” are taking the place of human children, Shroff says. “And they are loved every bit as children. So, there’s lots of anguish over the pet when a relationship dissolves.”
Other proposed amendments introduced to the Family Law Act include modern-day changes for property and pension issues for couples and families going through a separation or divorce.
Attorney General Sharma said when she announced the amendments that the proposed changes would make it easier to divide property equitably and improve the division of pensions. She said the changes are based on a review over several years of the act to address changes in society and developments in case law.