After nearly 45 years of working in animal welfare, Eileen Drever never thought she’d see the day when pets are recognized as sentient beings in British Columbia.
But in January, amendments to the province’s Family Law Act came into force which clarify pets’ vital role in families. They provide guidance for people and judges involved in custody disputes to determine what’s best for all involved — whether they have two legs or four.
Until now, the factors that determined who kept companion animals were similar to those for dividing other types of property, such as how the animal was acquired and who paid.
Under the amended legislation — the first of its kind in Canada – courts must consider the best interest of the animal involved, including the extent to which each person has cared for the animal, as well as their ability and willingness to do so; the relationship a child has with the animal; and whether there is any history, risk or threat of family violence or cruelty to an animal.
“Pets are valued family members. Everybody who has a fur baby realizes how important this relationship is, how they bond with us. So to treat them as property is just ridiculous,” says Drever, senior officer protection and stakeholder relations with the BC SPCA.
“I’m absolutely thrilled that British Columbia is leading the way here. And I hope we’re the first of many provinces to take this on.”
Victoria Shroff has practiced animal law in the province for more than 20 years and says the amendments recognize that families come in different sizes, shapes and species, and help shift the mindset to recognize pets are “someone and not something.”
What’s more, of the eight factors a judge must consider when determining what’s best for pets and their families, three involve violence.
That’s important, as animal abuse often directly correlates to interpersonal violence. Research shows that violence toward people and violence toward animals are part of a larger pattern of violent crimes that co-exist, commonly known as the violence link. As part of that, animals are often weaponized and used by abusers to control their victims and prevent them from leaving the situation.
Humane Canada, along with member organizations like the BC SPCA, has long advocated for the recognition of the human-animal bond in legislation and policy making, and increased awareness of the violence link across the criminal justice system.
“Sixty percent of Canadian homes have at least one pet and research shows that more than 70 percent of pet owners identify their companion animals as family,” says Humane Canada CEO Barbara Cartwright.
“As these numbers continue to grow, it’s imperative that our laws and our social safety net recognize and support people with pets.”
Shroff, Canada’s first King’s Counsel in animal law, says BC’s decision to put the violence link front and centre in the legislation is game-changing.
While there has been some criticism of the fact the legislation bars the province’s Supreme Court from making shared custody orders in disputes, Shroff says in violent situations, doing so “would be poison.”
“Why should a woman have to keep that one last thread connecting her to the abuser?”
Drever says the legislation’s recognition of the violence link will save animal and human lives. She points to the fact that many individuals stay in violent relationships because of fear over what might happen to pets they’d have to leave behind. It can take six or seven attempts in some cases before someone is finally able to remove themselves and their pets from an abusive situation.
“And as long as someone has to have any dealings with a violent partner, they’re at risk, whether they’re dropping an animal off or picking an animal up. The abuser will still be a huge presence in their life, even though they’ve decided to move on or try to move on. They’ll still be in control.”
While she recognizes the violence link and appreciates that there are cases where a person will use an animal as a pawn in disputes, Rebeka Breder, a Vancouver animal lawyer, says in most cases she’s litigated, shared custody has been the best outcome for all involved.
“It’s similar to the way shared custody of children is a good solution,” she says.
“Even though a couple may not want to have anything to do with one another, they still share custody of their children. I think the same type of thinking and principles should apply to companion animals.”
Although disappointed that shared custody is not allowed at the Supreme Court level, Breder says the Provincial Court (small claims court) does have jurisdiction to deal with pet custody issues, and is governed by different legislation.
A large and growing part of her practice, Breder’s pet custody cases have all been handled in small claims court. She says when a couple has resolved all other issues and is only fighting over their animal, it’s a much better venue to resolve the dispute. The process moves faster and costs less.
Overall, Breder’s encouraged to see legislation that recognizes the best interests of animals. In recent years, she says most judges she’s appeared before have agreed with her that pets are more than property. However, when they’ve chosen a traditional division of property approach, it’s been incredibly discouraging.
In her experience, people will fight for a pet as much as they’d fight for a child. So to be told, ‘oh, it’s just a dog, just get another one,’ Breder says is “a huge blow to the heart.”
“That’s why I think it’s really important for legislation like this to exist because it validates people’s feelings that fighting for their companion animal is justified.”
At a time when many people forgo having children and consider their pets their fur babies, Shroff says BC’s amendments are an example of the law trying to catch up to where society is at.
“I think this is going to start a bit of a revolution in how we’re starting to see pets,” she says.
“Not just in a one-off case, but in legislation.”