The new amendments to the Family Law Act (the “FLA”) address aspects of property division, the division of pensions, and the ownership and possession of family animals. Most of these have already taken effect. The amendments addressing family animals
took effect on January 15, 2024.
In many households, pets are considered important members of the family. Thus, when
couples separate, a common question raised is: “What do we do about the family pet?
Within the Courts, family pets are considered in terms of ownership or custody. The Courts have traditionally viewed pet ownership or custody matters as a waste of the
Court’s time and resources. When it came to deciding these types of disputes, the Courts typically only considered family animals as property, and ownership was decided
on the monetary transactions made by each party. This essentially lumped family animals in with furniture and appliances.
However, with changing views and the increase in family pet disputes, the need to include amendments to the FLA became necessary. As such, the legislation includes provisions for “companion animals,” and the first relevant amendment includes the following definition:
Companion Animal: an animal that is kept primarily for the purpose of
companionship, and which does not include:
a guide dog or service dog;
an animal that is kept as part of a business; or
an animal that is kept for agricultural purposes.
The second relevant amendment is to the section of the FLA (section 92) that addresses agreements that parties can make respecting property division. Parties will be able to include terms about companion animals in their agreements as follows:
jointly own a companion animal;
share possession of a companion animal; or
give exclusive ownership or possession of a companion animal to one of the
spouses.
The third relevant amendment (section 97(2)(a) of the FLA) will allow the Supreme Court to “declare who has ownership of, or right of possession to, property, including a
companion animal.” This applies even if the companion animal is excluded property (as
defined in section 85 of the FLA).
The fourth relevant amendment will require the Courts, when determining ownership or
right of possession of a companion animal, to consider the following:
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.
This third amendment is particularly important because it moves the court analysis away from the traditional approach, under which family pets are strictly considered property, to an approach that considers the best interests of the family pet.
Finally, section 193(2)(b) has been amended to allow the Provincial Court of British
Columbia to have jurisdiction to make orders that address a companion animal.
THE TAKE AWAY
The important takeaway from this last amendment is that the Provincial Court does
have jurisdiction to declare that spouses jointly own a companion animal or require
spouses to share possession of a companion animal, options which are not available in
the Supreme Court of British Columbia.
Another thing to consider is that the legislation has provided a specific definition of “companion animal”, and not all family pets may qualify as such under the definition; therefore, the legislation may not apply in your circumstances. However, future litigation
will likely clarify this point by determining whether the existing definition is applicable
and includes a certain family pet or whether the family pet will be excluded. So, if there is any question about whether your family pet is covered by this legislation or if you are uncertain about the ownership of your family pet and how this might be determined, please contact us at 604-736-9791 or email Dominique Legendre at dl@dwslaw.ca.
Disclaimer: This article is not intended to serve as, or should be construed as legal
advice, and is only to provide general information. Should you require legal advice for
your particular situation, please get in touch with us. The information for this article was
compiled on December 15, 2023. Any updates made to the article can be found at