In May 2023, DSF published a blog discussing the approach taken by Ontario courts regarding pet ownership disputes and the then-proposed amendments to British Columbia's Family Law Act. Specifically, the BC government sought to clarify what kinds of decisions its courts can make regarding pets and the processes in arriving at those decisions.
A New Approach to Pet Custody
As of January 15, 2024, these amendments are now law in BC. Section 97 now includes subsections (4.1) and (4.2), as follows:
(4.1) In determining whether to make an order under subsection (1) respecting a companion animal, the Supreme Court must consider the following factors:
- 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;
- any other circumstances the court considers relevant.
(4.2) An order respecting a companion animal must not
- declare that the spouses jointly own the companion animal, or
- require the spouses to share possession of the companion animal.
The factors listed under s. 97(4.1) are based on the factors that courts across the country use to determine what is in the best interests of a child when making an order pertaining to parenting time and decision-making responsibility (i.e., child custody). This approach is very different from Ontario's "contemporary approach" to determining pet ownership. Despite being called "contemporary", Ontario's approach – developed in Coates v Dickson – characterizes pets as property, rather than as a family member over which an individual can have custody.
Applying the Amendments: Bayat v Mavedati
On March 13, 2024, the Supreme Court of BC (their equivalent of Ontario's Superior Court) delivered the province's first judgment pursuant to the new s. 97(4.1). In Bayat v Mavedati, Ms. Bayat sought exclusive care of a golden retriever named Stella following her separation from Mr. Mavedati after three years of cohabitation.1
The couple had brought Stella home in August 2020.2 Justice Nielsen found that the parties had evenly split the cost of purchasing Stella, and had also shared the responsibility for her care over the years that they lived together with her.3 However, many of the facts were in dispute. Ms. Bayat alleged on several occasions that Mr. Mavedati was negligent and even abusive as an owner. Ms. Bayat went so far as to allege that Mr. Mavedati hit Stella after she had an accident in the home.4 Justice Nielsen disagreed with Ms. Bayat's evidence, though, in large part due to the fact that Mr. Mavedati is a veterinarian and displayed his love and good intentions toward his dog during his testimony.5
Ultimately, Justice Nielsen ordered that the parties were to equally share custody of Stella on an interim basis, following a "week-on/week-off" schedule.6 Further, the parties were to have an equal say in the decision-making process as it relates to Stella's care.7
An Illegal Order?
While the prospect of joint pet custody is encouraging, recall what subsection 97(4.2) says about this kind of arrangement:
(4.2) An order respecting a companion animal must not
- declare that the spouses jointly own the companion animal, or
- require the spouses to share possession of the companion animal.
Based on the statute's wording, it appears that Justice Nielsen made an order contrary to subsection 97(4.2). Notably, Justice Nielsen did not reference this subsection in the decision, focusing instead on the factors in subsection 97(4.1). Consequently, joint custody of Stella may not be permissible under the new law. Clarification is needed on whether the Court can indeed grant shared possession of a companion animal and whether this authority is limited to interim orders.
What Comes Next?
Despite the controversial shared custody order, the decision in Bayat v Mavedati offers hope for the future of Canadian caselaw surrounding pet ownership. As Justice Nielsen remarked: "The recent amendments to the [BC Family Law Act] put the ownership of a companion animal...in the context of something that goes beyond ownership of [goods]."8 These amendments recognize that companion animals are not objects; rather, they are sentient beings capable of experiencing love.
Footntoes
1 Bayat v Mavedati, 2024 BCSC 619 at paras 1-2 [Bayat].
2 Ibid at para 4.
3 Ibid at paras 4, 7, 15.
4 Ibid at para 12.
5 Ibid at paras 8-12.
6 Ibid at para 15.
7 Ibid at para 18.
8 Ibid at para 14.
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