By Anastasiya Sadovska
All throughout Canada, the courts and household attorneys have lengthy grappled with the right way to deal with the division of pets between separating and divorcing {couples}. On March 27, 2023, the Honourable N. Sharma, Lawyer Common for British Columbia, proposed modifications to a number of sections of the Household Legislation Act by means of Invoice 17, the Household Legislation Modification Act, 2023.
Traditionally, the courts have handled pets as private property, which have been as much as division at separation. Virtually talking, the Supreme Court docket of British Columbia couldn’t give impact to the presumption of an undivided half curiosity in pets, in contrast to different household property, so one occasion ended up holding the household pet.
Whereas the courts have acknowledged spouses could also be deeply connected to a pet, they didn’t have jurisdiction to strategy the division of pets as an issue of “custody” (a lot much less “parenting”) – see FKL v DMAT, 2020 BCSC 1296.
The proposed modifications to part 3.1 outline what shouldn’t be a “companion animal” – particularly information canines, animals stored as a part of a enterprise, or animals stored for agricultural functions.
The following proposed modifications are to sections 92, 97, and most significantly, the addition of part 97(4.1), which reads:
(4.1) In figuring out whether or not to make an order below subsection (1) respecting a companion animal, the Supreme Court docket should take into account the next components: (a) the circumstances through which the companion animal was acquired; (b) the extent to which every partner cared for the companion animal; (c) any historical past of household violence; (d) the chance of household violence; (e) a partner’s cruelty, or risk of cruelty, towards an animal; (f) the connection {that a} youngster has with the companion animal; (g) the willingness and skill of every partner to look after the fundamental wants of the companion animal; (h) some other circumstances the courtroom considers related. (4.2) An order respecting a companion animal should not (a) declare that the spouses collectively personal the companion animal, or (b) require the spouses to share possession of the companion animal. (4.3) Sections 95 [unequal division by order] and 96 don’t apply to the making of an order respecting a companion animal.
You will need to observe that the verbiage of part 97(4.1) carefully resembles that in part 37 [Best Interests of Child] of the Household Legislation Act.
As an alternative of taking a look at components such because the receipt for buy of the companion animal, veterinary payments, proof of possession and the like, the Supreme Court docket now should take into account the historical past of care, historical past of household violence, cruelty in direction of the animal, relationship with the companion animal, and such different components that “humanize” the division of the household pet(s).
For a lot of households, the proposed amendments are welcome editions. Nonetheless, will the separating events now be required or inspired to quote knowledgeable proof akin to a bit 211 report? Will the Provincial Court docket of BC ever have jurisdiction over pets if the pets are nonetheless considered as “property”? Will these amendments to the Household Legislation Act complicate authorized and factual analyses for households?
A lot change is anticipated on the household regulation horizon and our Household Legislation workforce is able to help.
