Who Gets the Dog? Pets in a BC Separation Under the 2024 Rules

For many separating couples, the dog or cat is the hardest thing to divide. Until 2024, BC law treated a pet much like any other piece of property, with little to say about the animal's care or the people who loved it.

Amendments to the Family Law Act that came into force on January 15, 2024 changed that. They set out what a court must consider, limit what it can order, and leave room for spouses to agree on more flexible arrangements themselves.

What counts as a companion animal

The Family Law Act defines a companion animal as an animal kept primarily for companionship (s 1). Three kinds of animals are excluded: a guide dog or service dog within the meaning of the Guide Dog and Service Dog Act, an animal kept as part of a business, and an animal kept for agricultural purposes (s 3.1). A family dog, a cat or a pet rabbit will usually fit the definition; a breeding operation's animals or farm livestock usually will not.

These rules sit in Part 5 of the Act, the property division part, so they apply between spouses as Part 5 defines them: married spouses, and unmarried partners who lived together in a marriage-like relationship for at least two years (s 3). Our article on common-law separation and property explains the two-year rule.

What a court must consider

If spouses cannot agree, a court can declare who owns, or has the right to possession of, a companion animal (s 97(2)(a)). In deciding, the court must consider these factors (s 97(4.1)):

• the circumstances in which the animal was acquired;
• the extent to which each spouse cared for the animal;
• any history of family violence, and the risk of family violence;
• a spouse's cruelty, or threat of cruelty, toward an animal;
• the relationship a child has with the animal;
• the willingness and ability of each spouse to care for the animal's basic needs; and
• any other circumstances the court considers relevant.

The list moves the focus from who paid for the animal to who looked after it and where it will be safe and cared for. Evidence of day-to-day care, such as who took the animal to the vet, walked it, fed it and arranged care when the other was away, can matter.

What a court cannot order

The Act is direct on this point. An order about a companion animal must not declare that the spouses jointly own it, and must not require them to share possession of it (s 97(4.2)). In other words, a court will not set up a shared custody schedule for a pet. One spouse ends up with ownership or possession.

Two other usual property rules are switched off for companion animals. The sections on unequal division and on dividing excluded property do not apply to an order about a companion animal (s 97(4.3)), and the court's power reaches a companion animal even if it would otherwise be excluded property, for example a pet one spouse owned before the relationship (s 97(4)).

These cases do not have to go to the Supreme Court. The Provincial Court generally cannot divide property, but it can make orders about a companion animal (s 193(2)(b)).

Spouses can agree to more than a court can order

Spouses who can work it out have more options than a judge. The Act expressly allows agreements to jointly own a companion animal, to share possession of it, or to give exclusive ownership or possession to one spouse (s 92). Shared pet time is therefore possible, but only by agreement.

If you are negotiating pet terms, it helps to think beyond who keeps the animal on the first day:

• Schedule. Where the animal lives, how handovers work, and what happens around holidays and travel.
• Costs. Who pays for food, insurance, routine vet care and large unexpected bills.
• Big decisions. Who decides on major treatment, end-of-life care or rehoming, and whether the other spouse must be consulted.
• Moves. What happens if one spouse relocates, and whether the arrangement ends if it stops working.
• Children. How the animal fits with the parenting schedule, if the children are attached to it.

Pet terms belong in a written separation agreement with the rest of the property terms. A written agreement about property and debt, signed by each spouse with a witness, can be set aside only on limited grounds (s 93). Our article on what separation agreements settle and when they can be set aside explains those grounds.

Practical steps after separation

• Keep records. Vet bills, adoption or purchase papers, licence records and photos of day-to-day care can all help show how the animal was acquired and who cared for it.
• Raise safety early. If there has been family violence or cruelty toward an animal, tell your lawyer. Those are listed factors, and safety planning may be needed.
• Do not act unilaterally. Taking the animal and refusing contact can inflame a dispute that might otherwise settle. Note your date of separation and get advice on interim arrangements.

Separating and worried about your pet? Get the terms in writing

Our family lawyers can explain how the companion animal rules apply to your situation, negotiate and draft pet terms in a separation agreement, and represent you if an application is needed.

Call 604-259-2844 or send us a message to arrange a consultation at our Vancouver office.