As more families choose to adopt pets, the law may need to catch up with collective expectations and feelings surrounding those companion animals.
The Ministry of the Attorney General has been asking this question and more: does the property division section of the Family Law Act ("FLA") adequately address issues concerning pets, and should it be reformed to address pets separately from the family property?1
Current State of the Law – Family Property
Although the increase in proceedings over companion animals demonstrates their evolving social importance, courts typically resolve these disputes based on the property status of the animal.
The custody of pets during a separation is governed by Part 5 of the FLA. Section 81 states that each spouse has a right to an undivided half interest in all family property.2
In application, this can mean that a judge may look to divide the price paid for the pet in half while granting custody to only one person. If there is more than one animal, the judge may look to divide the number equally.3 Or, if one spouse purchased the pet themselves, then likely the pet will go with that person.
In other words, the court will attempt to answer which party is the more rightful "owner" under the law.
This issue is further complicated when a couple has been jointly caring for an animal for years and sharing veterinary bills, food and other custodial costs – as well as intangible costs like time spent with the animal – despite who may have initially paid any fees in acquiring the animal.
As Justice Gomery ruled in FKL v. DMAT, 2020 BCSC 1296, "Deciding which spouse will have the pet on termination of a spousal relationship is a problem of division of assets. The court has no jurisdiction to approach the matter as a problem of custody (much less parenting)."4
Potential Changes – Best Interests of the Pet
In many forums, a new understanding is emerging as more of these cases come before judges. In a 2018 decision from the Newfoundland Court of Appeal, Justice Hoegg remarked in dissent:
Litigation over the ownership and possession of dogs is far from unknown to the courts, which is an indicator that the ownership and possession of dogs is very meaningful to people. In this regard, I emphasize the emotional bonds between people and their dogs, and say that fair decisions respecting the ownership and possession of dogs can be much more important to litigants and to society than decisions respecting the ownership of a piece of furniture or a few dollars.5
While still nestled in the property division section of the FLA, some courts are attuned to the needs of the public, and many are attempting to make amends for this in their decisions.
Brought into effect in January 2017, Alaska became the first jurisdiction to expressly require courts to address the interests of companion animals when deciding how to assign the ownership in separation proceedings. Across the United States, several states have since followed suit including Maine, Illinois, New York, and California. Even though judges could already exert their discretion to consider an animal's best interests, very few legislatures required judges to do so when adjudicating property distribution upon the dissolution of a marriage.
The BC Civil Resolution Tribunal recently embarked upon a detailed analysis of the best interests of a dog named Tessa by considering parties' evidence regarding the dog's care in addition to experts who testified at trial as to who would be the most suitable caretaker.
The Tribunal found that the parties jointly adopted the dog and then considered nine factors to determine custody:
- Whether the dog was owned by one of the parties before their relationship began,
- The nature of the relationship between the parties when the dog was acquired,
- Any express or implied agreement about ownership, made either when the dog was acquired or after,
- Whether at any point the dog was gifted by one party to the other,
- Who purchased the dog,
- Who exercised care and control of the dog,
- Who bore the burden of the care and comfort of the dog,
- Who paid for expenses related to the dog's upkeep, and
- What happened to the dog after the party's relationship changed.6
The Tribunal considered the lifestyles of the parties and decided that Tessa should be cared for by one spouse full-time as he had spent more time training the dog and was able to bring her to work every day – thus resulting in a better lifestyle.
There is an emerging understanding of the importance of the family pet, and courts may, at their discretion, apply an analysis of the animal's best interests when determining custody. As this is an evolving area of law, if you have a furry loved one as part of your family, you can save yourself any uncertainty by addressing your animal(s) in a separation agreement.
We will wait and see if the Ministry of the Attorney General adapts the FLA to reflect our reality and provide clear legislation and directives to help with those changes. More and more people are adopting pets and treating those pets as esteemed family members. As a result, they will likely demand additional certainty from the courts to reflect these relationships.
1 Family Law Act Modernization, Ministry of the Attorney General, July 26, 2022. Stable link: Family Law Act Modernization | govTogetherBC.
2 Family Law Act, SBC 2011, c 25, s 81.
3 Almaas v. Wheeler, 2020 BCPC 51 at para 75.
4 FKL v. DMAT, 2020 BCSC 1296 at para 141.
5 Baker v. Harmina, 2018 NLCA 15 at para 59.
6 Poole v. Ramsey-Wall, 2021 BCCRT 789 at para 17.
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