Amendments a 'step in the right direction' but do not go far enough, say two lawyers
In amendments to the province’s Family Law Act, which came into force Monday, British Columbia has changed how the law treats pets in divorce and separation proceedings.
Courts will assess the pets’ best interests and consider who has historically taken care of the animal and its relationship with children when determining which party takes possession. Courts can now also order parties to uphold a previous agreement for sharing ownership or for exclusive ownership by one party.
The amendments reclassify pets as “companion animals,” but this does not include guide dogs, service dogs, or farm animals.
Animal law lawyer Rebeka Breder and family lawyer Lorne MacLean, who both practise in Vancouver, say that the amendments are a step in the right direction but do not go far enough.
“In the bigger picture, this is very exciting,” says Breder. “It's really groundbreaking legislation. It's the first of its kind in Canada.”
She says the amendments reflect the evolution of animal law in Canada, recognizing that animals are an important part of society and companion animals are “members of the family.”
“I think that everybody's in favour of this change,” says MacLean. “It's a start. I don't think it's the endpoint yet.”
While the amendments allow the BC Supreme Court to uphold prior agreements on shared or exclusive possession and make orders to give possession of the pet to one party or the other, the court cannot order shared possession.
MacLean says it is odd that the courts cannot order shared possession of the pet when that would be the de facto position pre-separation, as the couple would often share care and control.
“It seems somewhat incongruous to us. But maybe that will come down the road as more cases come before the courts.”
Breder made submissions to the government during the legislation’s drafting. She had advised that the province give judges the power to order shared ownership.
“So, I'm not happy with that,” says Breder. “In that sense, I don't think the legislation goes far enough.”
But she adds that there is a “silver lining” in that the amendments allow the Provincial Court to deal with pet custody disputes.
“In my reading of the provincial Small Claims Act in British Columbia, a court is allowed to order shared custody,” she says. “In fact, I've been successful in a few of my cases at the Provincial Court level, where judges have indeed ordered shared custody of an animal.”
Breder recommends separating couples who cannot settle a dispute where the sole issue is who gets the dog or cat should bring the matter to Small Claims Court.
According to Oliver Spinks, a MacLean Law articling student, in determining pet possession, courts will examine the circumstance by which the couple acquired the pet, each party’s involvement in pet care, the history and risk of family violence, the threat of animal cruelty, the pet’s relationship with children, and each party’s willingness to take care of the animal.
Breder takes issue with the fact that when considering the best interests of a pet, one of the factors is that the person who gets the animal must ensure their “basic necessities.”
“In that regard, it doesn't go far enough,” she says, “It's not good enough to just leave a bowl of water and food out. We want to ensure that companion animals thrive.”