In January of 2024 amendments were made to the Family Law Act, giving the Provincial and Supreme Court of BC power to make decisions regarding the ownership and possession of companion animals, otherwise known as pets. Specifically, section 97 of the Act grants this power, with the new addition of subsection 4.1 giving the Court factors to consider when making an order in relation to a companion animal.
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.
According to the Act, there are limits to what can be considered a companion animal.
3.1 For the purposes of this Act, the following are not companion animals:
(a) a guide dog or service dog within the meaning of the Guide Dog and Service Dog Act;
(b) an animal that is kept as part of a business;
(c) an animal that is kept for agricultural purposes.
In the case of Bayat v. Mavedati, 2024 BCSC 619 (CanLII), the claimant was seeking an order for exclusive care, and custody, of the family dog Stella, after ending their relationship with the respondent. The claimant, a nurse, and the respondent, a veterinarian, had lived together for three years, purchasing Stella four months after moving in together.
The respondent made the initial payment for the dog; however, there is evidence of an e-transfer from the claimant to the respondent for half the value of Stella. There was no accompanying message with the e-transfer stating this was what the money was for, but it was sent at the time of Stella’s purchase. The Court accepted that this was the claimant paying for half of Stella. It was not an issue that only the respondent was listed on the birth certificate.
Despite the claimant attempting to allege that the respondent had been neglectful and cruel, this was not accepted by the Court. Rather, the Court decided that both parties had demonstrated a deep concern about the well being of Stella. As a result, the Court ordered that custody would be shared 50/50 on an interim without-prejudice basis of one week-on/one week-off. Since custody was split equally, the Court also stated that both parties would share the decision making responsibility, concerning Stella, 50/50.
This case suggests that there is still a grey area regarding the new amendments and the Court’s ability to require shared possession. As, along with the new amendment of section 97(4.1) was also subsection (4.2) which states:
(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.
In the case of Bayat v. Mavedati the couple had lived together for three years in a marriage-like relationship, legally classifying them as common law in British Columbia.[1] Nonetheless, the Judge ordered for the claimant and respondent to jointly share possession of their companion animal. This judgement does not make mention of section 4.2. While it is an interim order, it does still seem to go against section 94(4.2)(b), as both parties are being required to share possession of their companion animal.
Granting exclusive ownership with the facts of this case would pose difficulties, as the Court found that both parties acquired the companion animal equally, took care of the animal in an equal manner, and had no concerns over the animal’s safety with either party. While one party is a veterinarian, it hardly seems fair to grant exclusive ownership purely based on the field of ones employment.
Further clarification is needed whether the Court can, in fact, grant shared possession of a companion animal, and if this is only limited to interim orders. If exclusive ownership must be determined, additional factors need to be identified when there are equal circumstances between the parties, as seen in Bayat v. Mavedati.
Important to note is that the Family Law Act only applies to spouses, parents, or guardians. As a result, couples who have lived together for less than two years, but share a companion animal, must rely on other legislation in determining possession.
[1] Government of British Columbia, “What is a Spouse?” 6 March 2024, online: <https://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/family-law/separation-divorce/what-is-a-spouse>.