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In the animal's best interest

Changes to BC's Family Law Act that regard pets in custody disputes as more than property are "game-changing" say lawyers.

Terrier and broken family

British Columbia's amendments, the first of their kind in Canada, aim to guide courts in determining ownership of companion animals following a separation or divorce.

Until they came into force on January 15, 2024, the factors that determined who kept companion animals were similar to those for dividing other types of property, such as how the companion animal was acquired and who paid. 

Those factors include each person's ability and willingness to care for the animal, the relationship a child has with the animal, and whether there is any history, risk, or threat of family violence or cruelty to an animal.

"We've moved away from a best ownership formulation towards a best interest for all concerned approach," says Victoria Shroff, who has practiced animal law in BC for more than 20 years.

It's a recognition that families come in different sizes, shapes and species — whether they're two or four-legged.

"For me, that's game-changing," says Shroff, Canada's first King's Counsel in animal law.

"I cannot think of another single Canadian statute where animals are treated and thought of as members of the family."

Prior to serving as acting director of family law and court services with Prince Edward Island's department of Justice and Public Safety, Jenny Mason represented children during their parents' separation or divorce.

She points to research that shows how destabilizing, stressful and lonely separation and divorce can be for children, during which pets can provide critical support and comfort. 

When she'd ask kids about their families, they'd often list their pets before the humans, and they regularly told her how much they missed them when they were separated. 

"The emotional benefit of pets for children is another reason why it's important the decision about where a pet will live post-separation be taken seriously," Mason says. 

"BC's amendment recognizes this by requiring courts to take into account the relationship between the child and the animal."

Pet custody has been calling out for attention from legislatures for some time, as family law case outcomes have been wildly inconsistent. 

"Some judges have treated animals as pure property and been quite disdainful of litigants who come to court seeking help dividing animals of a marriage or relationship," says Camille Labchuk, an animal rights lawyer and executive director of Animal Justice.

Other judges recognize that treating animals like pure property is not really satisfactory, because people don't think of their pets that way. However, Labchuk says there's little statutory support for that.

"I think a lot of lawyers and judges have had discomfort with the way the law has existed so far, and the lack of real scope to take a more sentient or relational approach to animals and separation."

She says BC deserves credit for giving attention to the issue and being first to bring something forward. 

"It's important recognition that animals are not just tables and chairs. They're not family heirlooms, they're family members," Labchuk says. 

"They're much more akin to children than they are to property." 

That's especially true at a time when many people are not having children and see pets as their fur babies. Shroff says the amendments are a matter of the law trying to catch up to where society is at.

"Not everyone wants to have a human child. If someone is talking about Colin, I will ask them outright who they're referring to because I don't know if he's their terrier or 10-year-old son."

Beyond BC's step forward, Canadian jurisdictions continue to lag. Alaska was the first to enact pet custody legislation in the United States in 2017. Maine, New York, Delaware, Illinois, New Hampshire and California have since followed suit. 

In 2022, Spain became the latest European country to require courts to consider a pet's welfare when couples split. The Civil Code amendment followed similar changes in Portugal and France, requiring judges to treat pets as sentient beings.

In 2015, Quebec's national assembly passed legislation that defines animals as sentient beings. So far, no court has made any outstanding pronouncement on what that statute means, Labchuk says.

Even without explicitly recognizing sentience, existing animal protection legislation is evidence that society and our legal system already don't treat animals as pure property, she adds. However, "The family law context had a ways to go to catch up."

Mason believes BC's amendments will see other provinces follow suit. 

"BC is known for having quite progressive family law legislation. So I think that generally when they (make changes) legislators and practitioners elsewhere take notice." 

Even if some jurisdictions don't move on this, what the province has done can still benefit practitioners across the country by making the handling of pets in family law cases less haphazard.

Although things are slowly changing, Mason says she sometimes feels she'll be seen as petty or sentimental in bringing up companion animals when parenting time and decision-making responsibility for children are at issue.

"I don't think I'm the only family law lawyer who feels that way. It's just a bit taboo to bring up the animals." 

She's had cases where her client wanted to talk about having time with a dog living with the other party, but their lawyer refused to discuss it. Mason says the implication is that the dog wasn't important enough to spend time on.

Now, BC's legislation gives lawyers a footing to talk about companion animals in meetings, negotiations and court. 

"It can bolster the issue and break that taboo of 'we don't talk about the dog,'" she says.

Often, provinces don't want to be the first to do something. But Labchuk says that with a precedent in place and the ability to see it in law and in practice, she also expects more jurisdictions to want to give guidance to individuals who are separating and to judges deciding the cases.

She's also hoping to see progress in the area of wills and estates, specifically allowing trusts to be set up for the care of companion animals after a person is deceased. 

"That's something that we don't see in any Canadian province, but we do see in a number of American jurisdictions," Labchuk says. 

"It's a very easy thing to incorporate."