New BC Law Changes How Pets Are Divided Up in Divorce & Family Law Cases
Yesterday I had the pleasure of accepting Kristy Cameron's invitation to join her on her radio show in Ottawa to weigh in on the recent changes to the Family Law Act in British Columbia. You can find her show at iHeart Radio 580 CFRA News Talk Radio. One of my favourite parts of the show was when Kristy and her producer Chris coined the word "dogimony."
A pet's best interests are now one of the principles a BC judge must consider when deciding which party gets ownership and possession of the companion animal. The relationship a child has with the pet and the relationship the other spouse has are also required considerations. It's like a combined best interest of the pet + stakeholder principle.
What are the changes in s 92 and s 97 of BC’s Family Law Act?
The amendments add a definition of a “companion animal.” This is an animal that is kept primarily for the purpose of companionship (not for business or farming, not a guide dog or service dog) (See sections 1 and 3.1).
This will capture most if not all pet scenarios in a divorce and family law dispute.
The key part of the amendment for companion animals sets out what a court must consider if a case is brought before it (See section 97 (4.1)):
• circumstance under which the animal was acquired,
• extent to which each spouse cared for the animal(s),
• history of family violence if any,
• risk of cruelty or threat of cruelty toward the animal,
• relationship that child of relationship has with animal, and
• willingness and ability to care for and meet the basic needs of the animal.
These required points of analysis are a major change. Notice was is not there. There is not factor that requires a judge to consider classic property considerations, such as who's name is on the adoption papers, or who's name is on the pet insurance policy or the veterinarian bills, or microchip database.
The amendments don't appear to bar a judge from asking about those things, but the wording allows the judge to ignore them in favour of broader questions.
The pets are still a form of property, but the type of property has been modified considerably. The number of rights that come with pet 'ownership' have been reduced or weakened in favour of the court's view of the pet's interests and those of other other family stakeholders. These could be children who form an attachment or the other spouse who also has a strong emotional connection and the time to care for the animal.
What Would a BC Court Award for a Companion Animal?
A BC court will only grant ownership and possession to one spouse after it has completed its analysis of the factors in light of the legal arguments put forward by each side.
This means that a BC court won't declare joint ownership or require joint possession.
If parties want to have joint ownership and joint possession, they would have to sign a domestic contract voluntarily.
Contracting Still Permitted - Pets Are Still a Form of Property
But the changes in the BC Family Law Act haven't removed all property rights completely because the amendments still allow for spouses to make the pets the subject of cohabitation agreements or marriage contracts voluntarily.
Section 92 will now allow for pets - companion animals - to be subject of a contract between spouses,
joint ownership,
shared possession, or
exclusive possession and ownership to one spouse.
The legislature in BC has moved the pet into the category of almost a child in that similar principles and factors in deciding child custody/primary residence, or parenting time come into play with who gets the pet.
How Does This Compare to How Pets Are Viewed in Ontario's Family Law Act and Decided in Ontario Courts?
The BC changes are in major contrast to Ontario's treatment of pets in family law cases. The Ontario approach is mainly a classic property ownership analysis.
The court asks about title, registration documents, the names of people on veterinarian and insurance bills, and who paid for the food and upkeep of the animal.
Coates 2021 ONSC - In the Coates case, their were two dogs involved - black Labrador retrievers - and both parties had equally strong cases on classic property law principles. So they got one dog each. But the particular dog that one party got was the one the judge felt best suited her psychological needs.
Duboff 2021 ONSC - In the Duboff case, the fact that one party's name was on adoption papers seemed to be the deciding factor of who got awarded the boxer dog.
My Initial Thoughts on the BC changes?
We still don't know how judges of the BC Supreme Court and Court of Appeal will apply the statutory factors in real cases. On thing seems clear to me: there’s more for a judge to analyze.
There is more opportunity for some parties in BC to obtain possession of an animal even if they did not enter the relationship as the recognized owner of the pet.
There is more risk for other parties in BC who entered the relationship as the recognized owner of the companion animal.
It’s positive that freedom of contracting was maintained, so that people can retain more options and certainty if they are willing to have the conversation beforehand and put in writing who gets what in the event of a break up. It is best to consult with a lawyer when making a cohabitation agreement, marriage contract, or separation agreement. "Doggy pre-nups" might become more popular. You can also have a doggy post-nup in Ontario.
It appears that in situations that have a parent having primary care, or custody, of a child and that child has a strong connection, these issues will be closely connected and be argued together with less possibility of compromise on certain issues since the stakes are higher, as are many child related issues in family (e.g. amount of child support tied to amount of time with the child). It could become a winner-takes-all result.
Linking issues like this has a great impact on how the parties conduct their litigation and the degree of willingness to compromise.
Comments