By V. Victoria Shroff, KC
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| V. Victoria Shroff KC |
While companion animals are still property under B.C.’s new family law statute, they now have an elevated status above bare property like a toaster.
Pets are not treated exactly the same as humans, but they are treated as family members rather than inanimate chattel under this legislation. B.C.’s modernized family law statute is a first of its kind in Canada and is innovative for treating animals as sentient beings — as someone, not something. I have long advocated for this proposition and was invited to share my views when B.C.’s new pet custody laws were being formulated and hope to see more statutes accounting for animals as sentient.
New test under B.C.’s legislation: ‘best interests for all concerned’
In my view, the applicable new legislative test for deciding custody of pets is a “best interests for all concerned test” as it factors in not just the humans but also the care and well-being of the furry family members. The “best interests for all concerned” standard includes a consideration of the interests of the whole family — both spouses and any child, plus the needs, interests and well-being of the companion animal in dispute.
Sharing the family pet following marital breakdown — is joint custody good ‘for all concerned’?
It is overly simplistic to default to the position that instituting joint custody of a pet after a marriage breaks down is the best resolution, that it is in the “best interest” of the pet. In my longstanding Vancouver animal law practice, I have seen that sharing possession of the family pet is definitely not always an optimal solution or in the best interest of either the animal or the humans when the couple splits up.
Under B.C.’s family law legislation, legislators decided that joint custody or shared possession must not be ordered by the court (though courts may enforce pet custody agreements of the litigants). Parties are permitted and encouraged to come to their own private agreements where they may jointly decide to give exclusive ownership or possession of the pet to one spouse or to share the family pet.
Why is shared custody often not an ideal solution for the companion animal or the parties?
After 20-plus years of dealing with animal law cases, my anecdata reveals that joint custody of the pet may, in fact, be the opposite of what is in the “best interests of a pet.” My veterinarian experts have concurred, though it is case-specific and there can be exceptions. It is safe to say that joint custody of a companion animal, when it is done, is often set up to pacify the spouses, not for the well-being of the pet. In some cases, it may work just fine, but shared custody following marital breakdown often does not benefit the family pet, nor does it work well for all humans. It is fact-specific and depends on the individual family members, both two- and four-legged, and while there may be those couples who have an amicable separation or divorce and co-parenting their companion animal runs smoothly for all concerned but, more likely, is that the separated or divorced couple encounters negative new behavioural issues, scheduling conflicts, disagreements about the rules of care, housing and many different shades of emotional trauma.
Sharing or co-parenting a companion animal can create an ongoing flashpoint issue between former spouses. Pets may also be used as pawns for further human conflict and their welfare may be compromised. Co-parenting or joint pet custody fails where there has been gender-based violence, a significant factor in pet custody cases. Most animals need a stable home to thrive; some animals find it unsettling to move back and forth between two homes, particularly animals with anxiety, territorial tendencies or special emotional or physical health needs. As far as compromises go, joint custody may often not be good for all concerned.
Is the companion animal treated the exact same as a human child in a pet custody dispute under the new legislation?
No.
While the best interests of the companion animal are a consideration in B.C. pet custody cases under the new statute, the pet does not have identical status or protections of a child in a child custody matter. There remains a distinction in the legislation between a human child and a companion animal when it comes to custody battles or enforcement of orders.
The interests of a companion animal are not protected as much as a child’s interests in a divorce proceeding.
There are considerations for the whole family under the new relational companion animal indicia listed in the statute. The legislation requires, for example, that Courts must consider the relationship that a child has with the companion animal.
The B.C. Supreme Court recently issued oral reasons for judgment in the “pet custody” case of Bayat v. Mavedati, BCSC 2024 619.
The couple involved went to the B.C. Supreme Court to fight over who would get to keep their dog, Stella. The claimant, Sahar Bayat, sought an order granting her exclusive custody of Stella but did not succeed. Instead, the court ordered an interim order that the former couple would share the custody of Stella.
The Bayat case is notable for being (apparently) the first pet custody matter decided by a superior court under B.C.’s groundbreaking new family law legislation involving pet custody disputes. I would like to know more about the facts and evidence in this case, but unfortunately, it was only oral reasons for judgment, so there was limited factual and evidentiary information provided for how the court arrived at its interim order that the parties would have shared custody. My guess is that a trial may be pending. It is also possible that the parties may have been seeking enforcement of an agreement, including perhaps where Stella would live during court proceedings. However, that is all speculation on my part as there is no specific reference to any of this.
What we do know from the judgment is that there were multiple prior court applications by the parties, that the claimant was represented by counsel and that the respondent is a veterinarian and a self-rep. We all appreciate that there is usually more behind a case than winds up in a written or oral judgment, and many would be interested in learning more about the case given that it was one of, if not the first, decision under the new family statute that came into force January 2024.
With utmost deference and respect to the court, a number of lawyers, clients, journalists and others are contacting me, trying to reconcile the interim order for shared custody in Bayat with the new legislative B.C. family law provisions prohibiting shared custody orders. A plain reading of B.C.’s new family law legislation states that courts “must not” declare joint ownership or order shared possession of the companion animal (Section 97 (4.2) Family Law Act).
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.
Animals are sentient. They are family members.
When the Bayat case was published, the media requested I share my views about the case and B.C.’s pet custody legislation generally. The court made a helpful comment about animal sentience in Bayat, and I highlighted that aspect of the judgment along with general information about the groundbreaking family legislation.
[14] The recent amendments to the Family Law Act essentially put the ownership of a companion animal, such as Stella, in the context of something that goes beyond ownership of a chattel. The sentience of the animal is recognized to the extent that the criteria reflect. (Bayat v. Mavedati, BCSC 2024 619.)
“Even incrementally chipping away at notions of property is helpful as it tips the law closer to equitable principles. Certainly, who paid for an animal is overly simplistic and fails to account for the needs of the pet as having intrinsic worth in his or her own right.” (Canadian Animal Law, Lexis Nexis 2021, V. Shroff.)
For further information about B.C.’s new laws around pet custody, please check out a recent conference by the Continuing Legal Education Society of British Columbia on Animal Law with a featured panel on pet custody. Our panel included commentary from Attorney General Niki Sharma, family law expert Georgialee Lang and me discussing B.C.’s new family law and pet custody provisions.
Pet custody cases continue to attract significant interest from coast to coast because what happens to our furry family members is very important. As more B.C. pet custody cases are decided in the coming months, we will observe how the courts refine and interpret the eight new relational factors set out in B.C.’s landmark family law legislation outlining grounds for determining who gets the pet when a marriage ends.
V. Victoria Shroff, KC, is one of Canada’s first and longest-serving animal law practitioners and the longest-serving in B.C. Shroff practises animal law in Vancouver at Shroff and Associates. She is also an adjunct professor of animal law at UBC’s Allard School of Law and faculty, Capilano University. Shroff is an associate fellow at the Oxford Centre for Animal Ethics. Recognized locally and internationally as an animal law expert, she is frequently interviewed by the media. Her book, Canadian Animal Law, is available at LexisNexis Canada. www.shroffanimallaw.com | LinkedIn.
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