Until very recently, family law in Canada has treated pets largely as it treats property. When a couple separates and turns to the court because they can’t agree on who gets the pet, the court makes a decision based on a number of factors. These include such things as who paid for the pet, whether one of them had the pet before the relationship began, who paid for the pet’s expenses, who provided most of the care for the animal, whether there was an agreement about what would happen to the pet if the people separated and so on.
Even when courts acknowledged that an animal was something different from, say, an investment or a car, they have not been prepared to go so far as to consider the concept of the pet’s best interests.
Wills and estates
A recent Ontario case has examined this issue in a non-family law situation. When Leonard Carvalho died unexpectedly in 2022, he had a partner, a dog and a will. Unfortunately, his will did not mention either his partner of six years or his dog, which he had purchased several months before his death, but left everything he had to his two sisters and a former spouse. His sisters and his partner all wanted the dog.
The partner, Aliesha Verma, took the position that the dog, Rocco, was hers as, she said, Carvalho had bought it for her. She also argued that her status as his common-law partner should entitle her to a share of the estate; ie. Rocco.
The sisters, Arlete and Helga Carvalho, said that Rocco was not a gift to Aliesha, but was their brother’s property. They also claimed that Aliesha and their brother were not common-law partners but had a “transactional relationship,” having met on a “sugar daddy” website.
Both parties have made some rather extraordinary claims about a dog that had only been around for a few months; Aliesha claiming Rocco was her support animal, describing him as “my family, my friend, my child,” and that she would suffer “irreparable harm” if she couldn’t keep him, and the sisters saying they have been “worried sick about their beloved pet.”
Both sides have spent thousands of dollars in legal fees so far. At this point, the court has ordered Aliesha to turn Rocco over to the sisters. She was unsuccessful in her attempt to get a stay while she appeals the decision.
B.C. leads the way
The legal position of pets in family law is beginning to change. In January 2024, British Columbia made changes to its Family Law Act to remove animals from the property category in which they have found themselves until now, making it the first province to do so.
Vancouver lawyer Victoria Shroff, who specializes in animal law, had this to say about the changes:
The B.C. Family Law Act now contains a definition of “companion animal” as an animal kept primarily for companionship. The new provisions apply to separating spouses — defined as people who are legally married to one another as well as those who have been in a marriage-like relationship for at least two years — who can’t agree on the future living arrangements for their companion animal.
People are encouraged to resolve disputes about their pets outside the formal court process, but when that is not possible or has been unsuccessful, the revised legislation requires courts to consider a number of factors:
- The circumstances in which the companion animal was acquired
- The extent to which each spouse cared for the companion animal
- Any history of family violence
- The risk of family violence
- Any cruelty or threat of cruelty towards the animal by either spouse
- The relationship between a child and the companion animal
- The willingness and ability of each spouse to meet the basic needs of the companion animal, and
- Any other circumstances the court deems relevant.
Courts do not have the option to make orders for shared possession/custody of pets.
My partner and I live with our much-treasured cat, on her sufferance, who supports this change to the law, although she sees us as her companions rather than the other way around. And if Kitty is for it, so am I.
She also hopes that, in the vast majority of cases, people will be able to resolve issues relating to their companion animals without going to court. Let’s not forget that, because of the backed-up state of family courts, women and children fleeing abuse are left in limbo for months and sometimes years waiting for court dates so they can resolve issues relating to parenting arrangements, safety and financial support.