Pets are used as 'pawns' in family court litigation, says Russell Alexander
Ontario should follow British Columbia’s lead and legislate a shift in how courts deal with animals in family law disputes, say lawyers.
New amendments to BC’s Family Law Act came into force earlier this month. In divorce and separation proceedings, pets have been upgraded from mere property and reclassified as “companion animals.” Courts will now assess the pets’ best interests when deciding with whom the animal will live. Courts will also consider who has historically cared for the pet and its relationship with children.
Lawyers have hailed the amendments as a step in the right direction but criticized them for not going far enough. They note that while courts can order parties to uphold a previous shared ownership agreement, the court cannot order a new one.
Ontario law treats pets as property, like a piece of furniture, and the party who produces the receipt is considered the owner, says Russell Alexander, founder and senior partner at Russell Alexander Family Lawyers. Often, when a party has ill intent, is upset that the relationship is ending, or is seeking retribution, they use the family pet against the other party, he says.
“Unfortunately, pets can be used as pawns in the litigation, and it can lead to some pretty unfair results.
“I really like BC’s law. I think it's a good approach.”
Alexander says courts have stated in rulings that, under the strain of limited resources, the family court must direct its energy toward more pressing matters than pet parenting plans or pet custody. While a resource-focused analysis can be practical, he says, this “assails the court’s primary objective: to resolve disputes fairly and appropriately.
“Pets are different than furniture in a number of ways,” says Alexander. They provide companionship and support. A bond exists between the animal and the family; the pet can comfort children enduring separation and divorce. He says Ontario should take “a more caring and compassionate approach” when dealing with pets.
“I think the BC approach is a good one.”
Victoria Shroff is a BC-based animal law lawyer who advised the province’s attorney general on the new family law reforms. She expects other provinces will follow with copycat legislation because BC’s changes reflect a societal understanding of pet relationships and because the caselaw is trending in that direction.
“This is going to have a ripple effect across the country.”
Ontario would be the next most logical jurisdiction for similar reforms to emerge, she says, because the province is leading the way in caselaw that promotes an understanding of pets as more than property. For example: Coates v. Dickson, 2021 ONSC 992. The idea has also been developed in Atlantic Canada, including in Baker v Harmina, 2018 NLCA 15 and MacDonald v. Pearl, 2017 NSSM 5.
“Because these provisions are already tracking common law factors from past pet custody cases in various parts of Canada, it makes sense that we're going to see new legislation follow – assuming there's political will.
“It's a good idea for Ontario to adopt it because it's going to help provide clarity to all those people who are dissatisfied with the way things are now,” says Shroff.
