Who Gets the Cat? Pet Custody Changes to BC’s Family Law Act

By Millad Ossudallah, BC Legal Coach
Pet lovers, rejoice! Effective January 2024, British Columbia has introduced amendments to the Family Law Act (the “Act”), giving both the Provincial and Supreme Court of BC the power to make decisions on the ownership and possession of your beloved family pet post separation. But what is this going to look like in practice? What factors will courts consider when deciding who gets to keep the family pet? And will it go so far as to permit shared custody arrangements?

No longer mere property, pets are stepping into the legal limelight as ‘companion animals,’ a change that promises to reshape the landscape of pet custody disputes. Let’s dive into the specifics of these amendments to better understand the implications for pet owners navigating separation.

Historic Treatment of Pets in Family Law

Prior to these January amendments, the law distinctly classified pets as property (like any other asset) in the context of family law disputes. Notwithstanding pets were a species of personal property, case law showed support for a flexible approach in a pet-related disputes, specifically focusing on the protection of the animals’ welfare.

Recent Treatment of Pets in Family Law

The recent amendments - introduced by Bill 17, Family Law Amendment Act, 4th Sess., 42nd Parliament, British Columbia, 2023 (assented to in May of 2023) – updated the Act and the Provincial Court Family Rule regarding pets.

These changes identify pets as ‘companion animals,’ meaning an animal that is kept primarily for the purpose of companionship. This definition excludes the following:

(a) Guide dog or service dogs
(b) Animals that are kept as part of a business
(c) Animals kept for agricultural purposes

Clarifying the Definition of ‘Companion Animals’

The amendments to the Act outline several factors for courts to consider when determining ownership of a ‘companion animal’. These factors include:

  1. The circumstances in which the companion animal was acquired
  2. The extent to which each spouse cared for the companion animal
  3. Any history of family violence
  4. The risk of family violence
  5. A spouse’s cruelty, or threat of cruelty, toward an animal
  6. The relationship that a child has with the companion animal
  7. The willingness and ability of each spouse to care for the basic needs of the companion animal
  8. Any other circumstances the court considers relevant

In practical terms, these amendments encourage a more thoughtful, welfare-orientated approach to resolving pet custody disputes. Instead of treating pets as objects to be divided, the courts are now equipped to consider what arrangements will best support the animals’ well-being, along with the emotional bonds that define the relationships with our pets.

Diving Deeper into the Act

Pet custody disputes have increasingly become a focal point in family law, reflecting the deep emotional bonds we share with our pets. Recognizing this evolving relationship, the amendments were introduced to address the unique status of pets in our lives, beyond mere property or assets. These changes aim to ensure that decisions around pet custody are made with the welfare and best interests of the companion animals at heart, acknowledging their role as cherished family members rather than belongings. This shift signifies a progressive step towards more compassionate legal recognition of the bond between humans and their furry friends.
It is important to note, however, that the courts cannot make an order for joint custody or possession of an animal. As an alternative, parties can have shared custody or shared possession of an animal through a written agreement, which can be upheld under section 92 of the Act.

To put this into perspective, let’s consider the practical implications of the amendments to the Act, specifically sections 92 and 97.

Understanding Section 92

Previously, the legal framework treated pets similarly to how property would be treated when divided upon separation, like a car or a piece of furniture. Now, section 92 of the Act allows for more nuanced decisions regarding pets. For example, the Supreme Court of BC can consider options like:

(a) Joint ownership of a companion animal
(b) Shared possession of a companion animal
(c) Exclusive ownership or possession of a companion animal to one of the spouses

Understanding Section 97

Section 97 of the Act expands on how companion animals are factored into property division, which includes ‘companion animal’ as a term for ownership and possession. The court can also factor in which party has an exclusion to the companion animal (basically, who has the right to keep the pet).

 The Provincial Court 

The Provincial Court will also have jurisdiction to deal with companion animals and any legal disputes that may arise. This avenue may be more ideal for self-represented litigants, individuals who do not want to bear extensive legal costs to have their matter heard at the Supreme Court level, or for those in common law relationships.

An Application About a Family Law Matter (Form 3 of the Provincial Court forms), will include new schedules with respect to companion animals and whether a companion animal is triggered by an existing agreement. Upon filing that application, the claimant must provide information to the court, considering the eight specific factors previously mentioned and any supporting evidence. These factors include how the pet was acquired and the level of care each partner provided for the pet, among others.

For example, when considering “the circumstances in which the companion animal was acquired”, you might include the following evidence:

  1. Contract with the breeder
  2. Registration form for any microchip
  3. BC pet registry
  4. Any written communication between you and your ex-spouse

Navigating the nuances of pet custody under the new Act amendments may feel overwhelming, especially when you’re already dealing with the emotional stress of a separation. Understanding the legal landscape, making informed decisions, and ensuring the best interests of your beloved companion animal are protected often requires expert guidance. That's where our Coach My Case team comes in. Whether you're considering filing an application, seeking to understand your rights, or need assistance with drafting a shared pet custody agreement, our legal coaches are here to provide clarity, support, and expertise. Schedule your free 20-minute consultation today to explore how we can help you navigate this complex process with compassion and efficiency. Let us be your guide to securing a future that respects the bond you share with your pet and ensures their welfare is a priority.