Despite the love and companionship that most people share with their pets, our furry companions have been historically treated by law as mere personal property, especially when it came to determining ownership during divorce, separation, and even estate planning. However, given the growing trend of millennials choosing to have pets over children, and even preferring their pets over certain family members , it is not surprising that we are bound to see changes in legislation that will adapt to these changing dynamics within our society.

The recently enacted British Columbia Family Law Amendment Act, 2023, does just that. The Act introduces significant amendments to the Family Law Act, including provisions that specifically address companion pets, which will provide more guidance for parties and judges when assessing the ownership and possession of pets upon separation or divorce.

The particular change is in section 97, which reads:

(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

Traditionally, ownership of a pet would be established in the same manner as any other personal possession, requiring the party claiming ownership to provide a purchase receipt or similar proof. However, the proposed amendments indicate that the court will now take into account additional factors akin to those outlined in section 37 of the Act, which are used to determine appropriate parenting arrangements in the best interest of the child. As a result, the court will now consider factors such as a history of family violence, risk of animal cruelty, the parties’ relationship with the pet, and the history of care.

This shift aims to make disputes over pet “custody” more considerate of the animal’s well-being. These changes acknowledge the special role of family pets and seek to safeguard their welfare in cases of separation or divorce. Although these changes have yet to be implemented in our jurisdiction, it is expected that Ontario will eventually follow suit, which will inevitably also make an impact on how pets are treated by testators in estate planning.

Thank you for reading!

Margarita Grup.