On January 15, 2024, British Columbia will make history by bringing into force the first legislation of its kind in Canada that contains specific provisions dealing with pet custody disputes, under the Family Law Act, S.B.C. 2011, c. 25.

Starting in 2022, I made submissions to government that contained three main wishes for amendments to the Family Law Act: (1) to recognize the best interest of animals, (2) to allow the Supreme Court to make an order for joint custody of a companion animal and (3) to provide a specific provision that grants the Provincial Court with the jurisdiction to deal with pet custody disputes.

Thankfully, two of these wishes will indeed be reflected in the new legislation.

Some of the key changes to the Act include the following.

Under section 92 of the Act, which allows spouses to make agreements respecting the division of property and debt, a Supreme Court can now uphold an agreement dealing with jointly owning a companion animal, or sharing possession of a companion animal, or provisions that give exclusive ownership or possession to one of the spouses.

Under section 97 of the Act, which allows a Supreme Court to make orders respecting the division of property or family debt, the court may now determine ownership or right of possession of a companion animal. When doing so, a court must (note the mandatory language) consider the best interest of the animal at issue, including the following factors: the circumstances under which a companion animal was acquired, the extent to which each spouse cared for the companion animal, any history of family violence, any risk of family violence, a spouse’s cruelty, or threat of cruelty, toward an animal, the willingness and ability of each spouse to care for the basic needs of the companion animal and any other circumstance the court considers relevant.

Another key amendment is that the Family Law Act now includes a provision that grants the Provincial Court the jurisdiction to deal with companion animal disputes. This puts the issue of whether the Provincial Court has the jurisdiction to hear pet custody disputes to rest. In my experience, the Provincial Court is best suited for these disputes, instead of the Civil Resolution Tribunal, or the Supreme Court. This is because the Provincial Court tends to be faster and more efficient, while also allowing for viva voce evidence, which is often critical in these cases.

Unfortunately, the new amendments also provide that a Supreme Court cannot make an order for joint custody or possession of an animal. Presumably, this does not apply if the court is asked to only uphold an agreement between the spouses under section 92, which may include an agreement for joint custody.

Further details can be found in the recent Orders in Council: 544/2023 and 545/2023 that amend the Family Law Act and the Provincial Court Family Rules.

Overall, the amended Family Law Act is a step forward for companion animals, especially in regard to considering their best interest and providing the Provincial Court with the jurisdiction to deal with pet custody disputes.

However, there are some significant concerns with these amendments, including that the Supreme Court cannot make an order for joint custody, even though that is indeed in the best interest of animals sometimes.

It is also concerning that when a Supreme Court considers the best interest factors, part of the legislation provides for the consideration of only the “basic needs” of the animal, when it should really be ensuring that animals be provided care for them to thrive.

Notwithstanding some of these shortfalls, it is clear that our laws are evolving to reflect the reality that many people treat their companion animals like family members. In the bigger picture, this also sends the message that it is never a waste of time or judicial resources to litigate animal law disputes.