Groundbreaking changes to B.C.’s pet custody laws

By V. Victoria Shroff

Last Updated: Tuesday, May 30, 2023 @ 9:33 AM

Law360 Canada (May 17, 2023, 9:49 AM EDT) --
V. Victoria Shroff
On March 27, 2023, an important news release from the British Columbia Attorney General’s Office concerning pet custody, family law legislation hit Canadian news outlets: “Proposed amendments to the Family Law Act will clarify the law around pets, property and pensions to better meet the modern-day needs of separating couples. Going through a separation or divorce can be an incredibly difficult experience,” said Niki Sharma, attorney general. “To help make life easier for couples going through a separation, we’re introducing amendments to the Family Law Act that better reflect the priorities and values of people today, including making sure the important role pets play in families is considered in the separation process.”  

Once introduction of the pet-friendly legislative amendments was released to media, phones at my animal law firm started ringing off the hook and my inbox was flooded with media requests for commentary. Why? Because these changes are groundbreaking in Canada for seeing and treating companion animals/pets as part of the family.

Along with family lawyers and others, I am grateful to have had an opportunity to provide specific animal law feedback when the legislation was being formulated. It’s gratifying to know that the government listened closely.

The March 27 B.C. government news release quoted me acknowledging the momentous amendments: “These amendments reflect how pets are valued as unique family members by society rather than as inanimate property like furniture,” said V. Victoria Shroff, animal law specialist at Shroff and Associates. “Having relevant factors to consider for these difficult decisions will bring more clarity and is a welcome change.” (Please see the March 27, 2023 B.C. government news release here.)

The modernizing legislative provisions, which gained royal assent on May 11, clarify that a court may make orders respecting companion animals and include relevant factors that a court must consider before making an order respecting a companion animal or pet. Before these amendments arose, pets were simply treated like personal property under the Family Law Act, just like an asset, but now we have new legislation that has caught up with societal norms by factoring in relational aspects of the human-animal bond.

Pets are not property like toasters

Companion animals are family. This legislation has modernized the law to reflect this fact — mirroring societal values that animals are important, that pets are not inanimate property like toasters.

In most animal law cases and statutes across the board, animals are usually seen as property. However, this new B.C. legislation shows that animals are valued, playing key roles in families and will be seen as more than ordinary inanimate property in the context of a family breakup. I believe B.C.’s legislation will become a model for other provinces in Canada to follow. (See: Chek TV.)

‘Best interest for all’ concerned type test

We are moving toward a sort of “best interest for all” concerned type of test for determining who gets to keep the family pet when a family breaks up, to look at the best interests of the family members and the pet in context. It is hard not to see that some of the language concerning pets resembles wording in “best interests of the child” formulations.

Until this legislation, courts have mostly been treating animals as personal property to be divided like other property, though “We do have court cases in Canada going back 40 plus years where ... “best interest” considerations have been considered by our courts.” (Canadian Animal Law (Lexis Nexis) ).

This new legislation accounts for ownership of pets in a holistic way and also gives provincial court judges the authority to consider what is in the best interests of the family pet in the context of a dissolution.

As Newfoundland and Labrador Court of Appeal Justice Lois Hoegg stated (in dissent) in Canada's landmark pet custody case concerning Mya the dog in Baker v. Harmina [2018] N.J. No. 65, “... I am of the view that the ownership of Mya involved much more than a determination of who paid for her at the time of purchase. The ownership of a dog is a more complex and nuanced question than the ownership of, say, a bicycle.” (para. 52).

Contextual, relational factors

The new B.C. family law legislative provisions are ushering in a new era for courts to be able to provide guidance and resolution for parties who cannot work out their own pet custody agreements. While how the pet was acquired still factors in, the overall formulation is now contextual and relational rather than relying solely on whose name is on the bill of sale or adoption. A person's ability and willingness to care for the companion animal and the existing relationships between the pet and a child of the family have also been inserted into the legislation. The new companion animal aspects of the legislation define companion animals and exclude guide dogs, animals kept as part of a business, or animals kept for agricultural purposes.

Of note, orders made by the court will not declare joint ownership or shared possession of a companion animal, but couples may still be able to come to their own private agreements to share their companion animals/pets. In my 20-plus years of handling pet custody cases at my Vancouver animal law firm, not one client has ever said that they wanted to divide their pet like a piece of property and many want to share custody so private agreements accounting for who pays for the vet, daycare, medications, grooming, food, toys and the like, have worked well, whereas going to court introduced uncertainty, stress and expense.

The pet friendly changes to the law are forward-thinking and explicitly account for the relationship of the animal to the family, to children and to see an animal as sentient individuals and I believe that we will see copycat legislation in other parts of Canada before too long. For a more detailed Q&A on the new amendments please see this short video clip from Global TV of March 28, 2023.

Changes to B.C.s Family Law Act regarding pets/companion animals 

Family Law Act, s. 97 Bill 17 – 2023 Family Law Amendment Act, 2023 

Two primary pet-centric improvements:
  • clarifies that a court may make orders respecting companion animals;
  • adds factors that a court must consider before making an order respecting a companion animal.

Section 97 (4.1) In determining whether to make an order under subsection (1) respecting a companion animal, the Supreme Court must consider the following factors:

(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.

(4.2) An order respecting a companion animal must not

(a) declare that the spouses jointly own the companion animal, or

(b) require the spouses to share possession of the companion animal.

Aside from aligning societal understanding of pets within families, the new legislative provisions track common law factors from past pet custody cases in various parts of Canada such as MacDonald v. Pearl 2017 NSSM 5. (McDonald v. Pearl is often cited, including with approval by various superior courts such as Coates v. Dickson 2021 ONSC 992), Watson v. Hayward 2002 BCPC 259, Brown v. Larochelle 2017 BCPC 115, citing Gardiner-Simpson v. Cross 2008 NSSM 78, Bain v. Brown 2022 BCSC 915, Baker v. Harmina [2018] N.J. No. 65 and more). The civil resolution tribunal echoes this by noting in a March 2023 decision: “27. I find the factors in proposed section 97(4.1) of the FLA are generally similar to the common law factors in MacDonald, discussed above” (Bond v. McInulty 2023 BCCRT 263).

Violence link

There is a proven link in the case law and the socio-legal literature that violence toward animals and humans forms part of a larger matrix of violence known as the violence link. In keeping with the modern nature of the amendments, the violence link has also helpfully been included in the legislation. The new provisions provide a framework to probe the risk of family violence and threats of animal cruelty. We see instances of the violence link coming up fairly regularly in the pet custody context both in my private animal law practice and in poverty clinics, including our own Animal Law Pro Bono Clinic (ALPC) at the Law Students Legal Advice Program in Vancouver. In my feedback to the government, I pointed out that family violence has been factored into existing U.S. pet custody legislation. In fact, some American states make orders so that children and family pets shift between households together.

Resolution by agreement

Ideally, couples will still settle their pet custody cases out of court putting their furry family member’s needs front and centre in an agreement, but if a couple is unable to agree, B.C.’s laudable new pet friendly legislation provides a modern, holistic and more sensitive approach to both pets and humans in determining who gets to keep Katia the cat or Ganesh the golden retriever in a litigated dispute.

(Editors note: This story has been updated to include clarifying information.)

V. Victoria Shroff is one of Canada’s first and longest serving animal law practitioners. Shroff has practised animal law for over 20 years in Vancouver at Shroff and Associates; is erstwhile adjunct professor of animal law at UBC’s Allard School of Law and faculty, Capilano University. Shroff is an Associate Fellow Oxford Centre Animal Ethics. Recognized locally and internationally as an animal law expert, she is frequently interviewed by media. Her book, Canadian Animal Law is available at LexisNexis Canada. Reach her at, @shroffanimallaw or LinkedIn.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.  

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