PAW AND ORDER: NAVIGATING PET CUSTODY DISPUTES IN BRITISH COLUMBIA
Pets are often seen as more than just animals; they are members of the family. Colloquial terms such as “cat mom”, “dog dad” and “fur babies” make it clear that many pet owners view their furry companionsas their own children.
So, what happens to our beloved fur babies in the event of a divorce or separation? The law in British Columbia relating to family pets and separation can be complex and difficult to navigate, but with the right information, it is possible to make sure that your pet's well-being is protected. Read on to learn how the law in BC considers and treats pets in these situations.
The law in British Columbia relating to Family Pets and Separation
Originally, the Courts treated pets purely as “property”, and whoever purchased the pet was the critical factor in determining who gets to keep the pet. However, this approach is problematic as it does not take into account the well-being of the animal and other relevant factors.
While pets are still considered to be “property”, in recent years the case law in BC has evolved to consider other factors, and today there are three main ways in which the Courts can approach pet custody disputes:
1. The “pet as property” approach discussed above, where the person who purchased the pet gets to keep the pet. This is reflected in the decision of Brown v. Larochelle, 2017 BCPC 115, which sets out the original approach to reviewing pet custody cases. Another example of the Court’s application of this approach is where one spouse gifted the pet to the other spouse, the court would likely award the pet to the recipient spouse.
2. A broader “pet as property” approach where the courts consider an array of factors, rather than just who paid for the pet. The following list consists of non-exhaustive factors which are to be considered, as set out in Poole v. Ramsey-Wall, 2021 BCCRT 789 at para. 17:
a. Whether the dog was owned by one of the parties before their relationship began,
b. The nature of the relationship between the parties when the dog was acquired,
c. Any express or implied agreement about ownership, made either when the dog wasacquired or after,
d. Whether at any point the dog was gifted by one party to the other,
e. Who purchased the dog,
f. Who exercised care and control of the dog,
g. Who bore the burden of the care and comfort of the dog,
h. Who paid for expenses related to the dog’s upkeep, and
i. What happened to the dog after the party’s relationship changed.
3. A “best interests of the pet”, where the court considers elements such as who can dedicate more time to the pet’s care, and whether the pet has a stronger bond with one of the parties. This approach similar to the way the Court’s approach decisions relating to the custody of a child in separation or divorce. Although animals are still considered as “personal property” at law, they are treated differently, and factors different than those considered for inanimate objects, including best interests of the animals, are to be considered when addressing competing claims for animals. 1
While the Courts in BC have demonstrated they may factor in the “best interests of the animals” into their decisions, the current legislation does not reflect this approach. The BC Government has recently taken a positive step towards achieving this by considering changes to the Family Law Act to include pet custody provisions. However, we are not there yet, and it is uncertain when, or even if, the BC Government will amend the Act to include these provisions. So, what are your best options in the meantime?
What should you do if you are faced with a Pet Custody dispute?
Pet custody law in British Columbia is highly complex, and the courts can interpret these laws in various ways. It is advantageous for parties to attempt to resolve disputes amongst themselves, rather than in the courtroom. Some examples of arrangements parties can consider are:
1. A “pet custody agreement”, acknowledging that the parties agree to share custody of the pet, as well as detailing each party’s contact time with the pet; or
2.A buy-out approach, whereby one party can buy out the other party’s interest in the pet.
Parties can also be prepared and protect themselves in advance by including pets in any cohabitation or marriage agreements. It is essential to ensure you keep all documentation and receipts relating to the pet in the event that there is a relationship breakdown, and a pet custody dispute arises.
It's important to remember that the well-being of your pet should always be your top priority. Whether you're considering a shared custody arrangement or a buy-out approach, make sure that the arrangement you come up with will provide your pet with the love, care, and attention they need and deserve.
If you are unable to reach an agreement with your ex-spouse and must proceed to court, consult with a lawyer who can assist you to navigate through this challenging situation. For more information or to speak with one of our lawyers about your options relating to pet custody issues, contact our office at 604-669-5500 to book a consultation and learn more about your legal options
Sagoo v. Murray, 2016 BCPC 376, at para. 28.