make this province a national leader in considering the best interests of pets in the event of family breakdown, according to a leading animal rights lawyer.
Animal law lawyer , who is also a member of the ’s board of directors, said two of her three wish list items were realized in the changes, which the legislature adopted last year.
“There were three things that I was really hoping to get. I am pleased that two of them are reflected in the legislation,” said Breder. “This is the first family law legislation of its kind in Canada that recognizes disputes over companion animals in the context of a separation.”
Until now, legislation guided courts in making decisions around division of assets in the event of a marital or relationship breakdown — but there were no provisions for dealing with the fate of companion animals in the household. Pets were often treated as assets, like furniture, and Breder had submitted recommendations to the government urging the recognition of an animal’s well-being in the case of family separations.
“The best interest of animals should be considered in the legislation. Judges have already agreed with me about this in my cases that have also set this positive precedent,” said Breder. “That's been incorporated in the legislation, which is great.”
In determining the custody of a pet, the amendments guide the courts to consider things like the willingness and ability of each of the parties to take care of the animal. Any signs of animal cruelty by one of the parties, or any evidence of domestic violence, are also to be factored in.
Secondly, the amended law now grants jurisdiction for these decisions to small claims court.
Breder said that, in events where disputes over animal custody go to court, she prefers the small claims court, not the Supreme Court, because it tends to be more efficient and therefore less expensive for people to resolve their disputes.
“I don't think that it benefits anyone to have disputes resolved at the Supreme Court when there are many more procedural things you have to do, which means more time and more money for everyone,” she said. “The provincial [small claims] court is very well-equipped to deal with these sorts of disputes.”
Breder clarifies that, if a relationship dispute includes who gets the house, the car and the money, as well as who gets the dog or cat, then it is appropriate that everything be heard at the same time at the Supreme Court level.
“However, I get involved many times in these cases when they have actually resolved all their disputes except for who gets the dog,” she said. “In those types of situations, where the dispute is only or mainly about the companion animal, then the small claims court now has the jurisdiction to deal with it.”
The one thing that Breder wishes had been included in the amendments was the option for shared custody. Instead, the revised legislation explicitly precludes that option, unless a prior existing written or provable verbal agreement was in place to that effect.
In Breder’s experience, joint custody often works well until something changes. “Usually, one of them gets a new girlfriend or boyfriend,” she said, and the other person gets angry and out of spite withholds access to the pet. If a lawyer can prove through text messages or emails that some sort of agreement was in place, the court can uphold the joint custody arrangement. But if there is no evidence of an existing joint agreement, the Supreme Court is not able to impose one, she said.
In general, the changes reflect a growing trend in which the law is catching up with societal views, which have evolved from the idea of viewing animals as “chattel,” or property, and instead seeing them as members of the family.
“I'm quite pleased,” said Breder. “I think it's a step in the right direction.”
Pat Johnson is the communications manager at the Regional Animal Protection Society.
