As more families choose to adopt pets, the law may need to keep up with the collective expectations and feelings surrounding those companion animals.
The Attorney General’s Office has asked this question and others: The Property Division Section of the Family Law Act (“FLAMore) Should we reform to properly address pet issues and treat pets separately from family property?[1]
State of the Law – Family Property
The increase in litigation over companion animals demonstrates their evolving social importance, but courts typically settle these disputes on the basis of the animals’ property status.
Management of pets during separation is governed by Part 5. FLAMoreSection 81 states that each spouse is entitled to an undivided half interest in all family property.[2]
In application, this could mean that the judge splits the price paid for the pet in half and grants custody to just one. You may consider splitting up.[3] Or, if the spouse purchased the pet themselves, the pet may go with that person.
In other words, courts try to answer which party is the more legitimate “owner” under the law.
The problem is that couples have jointly cared for an animal for years and share not only hidden costs such as time spent with the animal, but also veterinary, food, and other administrative costs. It gets even more complicated if you are. animal.
As Judge Gomery ruled FKL vs DMAT, 2020 BCSC 1296“If the marriage is dissolved, it is a matter of property division to decide which spouse gets the pet. custody (much less child rearing)”[4]
Subject to Change – Pet’s Best Interests
In many forums, a new understanding is emerging as these cases come before judges. .
Lawsuits over dog ownership and ownership are not unknown to the courts. This shows that owning and owning a dog means a lot to people. In this regard, I emphasize the emotional bond between humans and dogs, and argue that fair decisions about dog ownership and ownership are more important to litigants and society than decisions about ownership of furniture or a few dogs. said it could be much more important. dollar.[5]
While positioned in the property division section of the FLA, some courts have responded to the needs of the public, and many are seeking to correct this in their rulings.
Effective January 2017, Alaska became the first jurisdiction to explicitly require courts to address the interests of companion animals when deciding how to transfer ownership in separation proceedings. I was. Several states in the US have followed suit, including Maine, Illinois, New York, and California. Judges could already exercise discretionary powers to consider the animals’ best interests, but few Congresses have required judges to do so when ruling on the distribution of property that accompanies the dissolution of a marriage. .
The BC Civil Settlement Court recently undertook a detailed analysis of the best interests of a dog named Tessa. This was done by reviewing the parties’ evidence regarding the dog’s care, in addition to the experts who testified at the trial as to who was the most appropriate caretaker.
The court found that both parties jointly adopted the dog and considered nine factors to determine custody.
- whether the dog was owned by either party before the relationship began;
- the nature of the relationship between the parties when acquiring the dog;
- Any express or implied agreement of ownership when the dog was acquired or thereafter.
- Regardless of whether the dog was gifted by one party to the other at any given time,
- who bought the dog
- who took care of and managed the dogs,
- who bears the burden of caring for and comforting the dog,
- who paid for the costs associated with keeping the dog, and
- What happened to the dog after the party’s relationship changed?[6]
Considering the lifestyles of the parties, the court determined that Tessa should be cared for full-time by a single spouse, as Tessa spent a lot of time training her dog and was able to take her to work every day. decided to be
Conclusion
There is an emerging understanding of the importance of family pets, and courts, at their discretion, may apply an animal best interests analysis in determining custody. This is an evolving area of law. So if you have a hairy loved one as part of your family, dealing with the animal in a separation contract can help you avoid uncertainty.
Wait to see if Attorney General’s Department adapts FLAMore It reflects our reality and provides clear laws and directives to help these changes. More and more people are adopting pets and treating them as important members of the family. As a result, we may require additional certainty from the courts to reflect these relationships.
If you or someone you know has any questions about the future care of a separated pet, feel free to contact Chantal Cattermole or someone in the Family Law Group for more information. With over 85 years of combined experience. Families trust us to navigate the complex legal frameworks and processes associated with separation and divorce, including property division, child and spousal support, custody and guardianship, parenting time, and alternative dispute resolution services. doing. Our expert network includes animal law attorneys, counselors, realtors and financial advisors to provide comprehensive and holistic support for our clients as they take the next step.
[1] family law modernization, Attorney General’s Office, 26 July 2022. govTogetherBC.
[2] family lawSBC 2011, c25, s81.
[3] Almaz vs Wheeler2020 BCPC 51 para 75.
[4] FKL vs. DMAT2020 BCSC 1296 para 141.
[5] baker vs harmina2018 NLCA 15 para 59.
[6] Poole vs Ramsey Wall2021 BCCRT 789 para 17.
