Traditionally, Canadian family law has treated pets as property, much like furniture or cars, when couples separate. However, as societal attitudes toward companion animals evolve, so too must the legal framework that governs their fate during divorces and separations. British Columbia has taken a significant step in this direction by introducing new legal provisions that recognize the unique role of pets in families. As of 15 January 2024, B.C. courts now have the authority to consider the well-being of pets when determining ownership and custody arrangements, a landmark shift in Canadian family law.
Traditional Treatment of Pets and Custody
In most Canadian jurisdictions, courts have traditionally applied property law principles when deciding who gets to keep a pet following separation. This approach has been widely criticized for failing to recognize the deep emotional bonds people share with their pets. Unlike children, pets have historically not been considered dependents in family law disputes, and ownership has often been determined based on financial or contractual considerations rather than the pet’s best interests.
The B.C. Reforms
Under the new amendments to B.C.’s Family Law Act, courts now have the discretion to assess several factors when determining pet custody. Judges may evaluate who has been primarily responsible for the pet’s care, including feeding, veterinary visits, and daily companionship. They may also consider the pet’s well-being by evaluating stability, environment, and continuity of care. If one party has a history of abuse or neglect toward the pet or its owner, this may influence custody decisions. Additionally, if children are involved in the separation, the court may consider the impact of pet custody on their emotional well-being. These changes signify a departure from a purely ownership-based approach and align with contemporary understandings of pets as family members rather than mere property.
Implications for Other Provinces
B.C.’s new pet custody framework may serve as a model for other provinces considering similar reforms. As pet ownership rates continue to rise, courts across Canada may need to adopt a more nuanced approach to resolving pet custody disputes. This could pave the way for legislative changes in other jurisdictions and encourage greater recognition of pets’ emotional and social significance in family law.
Challenges and Criticisms
While the reforms represent progress, they also raise practical challenges. Critics argue that applying a best interest standard to pets may lead to prolonged litigation and increased legal costs. Additionally, unlike child custody disputes, which prioritize the best interests of the child, defining the “best interests” of an animal remains a complex and largely subjective determination. Some legal experts worry that these changes may open the door to excessive litigation over pet custody, further burdening an already strained legal system. Others point out that while the new legal framework is a step forward, it does not address broader issues, such as the potential for emotional manipulation through pet custody claims in acrimonious divorces. The new law also does not provide a clear formula for judges to assess what is best for the pet, leaving much to judicial discretion.
British Columbia’s decision to reform pet custody laws is a significant step in acknowledging the evolving role of pets in family dynamics. By considering pets’ well-being in custody disputes, the province has modernized its approach to family law, setting a precedent for other jurisdictions. As these legal principles continue to develop, they will likely influence how courts across Canada handle similar disputes, reflecting society’s growing recognition of pets as integral members of the family unit. While challenges remain, these legal changes mark a progressive step towards treating pets as more than just property and ensuring their welfare is considered in family law proceedings.
Tia Riarh is a 1L at Osgoode and a Co-Publications Director for the Osgoode Hall Family Law Association. If you are interested in family law, follow @ohfla.osgoode on Instagram or reach out by email to ohfla.osgoode@gmail.com
RESEARCH
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