Pets in the Middle: How BC Family Law Handles Your Furry Companions

Pets were once treated the same as any other family property (like furniture) until amendments to BC’s Family Law Act came into force on January 15, 2024. These amendments gave “companion animals” special consideration when it comes to dividing family property following a separation.

A “companion animal” is defined as “an animal that is kept primarily for companionship”, which covers most family pets, but does not include guide dogs, service dogs or animals kept as part of a business or for agricultural purposes.

Section 97(4.1) of the amended Family Law Act sets out the factors that a court must consider when dividing a companion animal:

(a) the circumstances in which the companion animal was acquired;

(b) the extent to which each spouse cared for the companion animal;

(c) any history of family violence;

(d) the risk of family violence;

(e) a spouse’s cruelty, or threat of cruelty, toward an animal;

(f) the relationship that a child has with the companion animal;

(g) the willingness and ability of each spouse to care for the basic needs of the companion animal;

(h) any other circumstances the court considers relevant.

While there has been limited judicial treatment since the enactment and the caselaw is still developing, the following principles appear to be the common threads to date:

1. Although the Family Law Act does not explicitly reference “best interest of the animal” the same way the “best interest of the child” test does, courts have identified the animal’s best interest as an important consideration. Notably, in determining other relevant circumstances under subsection (h), courts have only considered factors relating to the best interest of the animal.
2. Courts give significant weight to prolonged post-separation status quo, favouring the spouse who has had exclusive care of the animal for a long period of time leading to the hearing of the application.
3. Courts are generally unwilling to disturb the status quo at interim application hearings if the final decision could go either way at trial, in order to avoid unnecessarily uprooting the animal multiple times.

These provisions apply only to people coming under the definition of “spouses” under the Family Law Act, meaning the pet owners must either be legally married or, if unmarried, have lived together in a marriage-like relationship for at least two years. Otherwise, companion animals continue to be treated as ordinary property: see Kiss v Leung, 2024 BCSC 2335.

It is also important to understand the limitations of the ways in which courts can deal with a companion animal: section 97(4.2) of the Family Law Act precludes courts from declaring that spouses jointly own a companion animal or requiring them to share possession of the animal. In other words, only one spouse can be ordered to have full control of the pet. This limitation does not apply to agreements between spouses, which can provide for flexible and creative arrangements, including shared schedules.

For this reason, exploring settlement is strongly recommended before going to court, as it allows spouses to negotiate arrangements that may better preserve the relationship with their pet and avoid the risk of losing them entirely.