Three years ago, a beautiful, cuddly and playful golden retriever called Roger came into Natasha Atwal’s life.
She and Roger were soon “attached at the hip.” But since Atwal left her partner in 2020, she has experienced the pain and cost of having that bond severed.
For the past year, Atwal has been involved in an extremely expensive and soul-destroying custody battle over the dog, who she considers family.
“It’s been awful… It’s taken a mental toll and physical toll on my relationships in my life. It cost me so much money and lost hours at work having to take time off,” she said.
It is this kind of grief that animal law lawyer Rebeka Breder is hoping to spare others as B.C. looks into modernizing the Family Law Act (FLA).
Breder - a board member of the Regional Animal Protection Society (RAPS) and who founded the first animal law firm of its kind in Western Canada - hopes B.C. will lead the way in Canada by recognizing pets as family.
“Right now, under our FLA in British Columbia, similar to the rest of the country, there is nothing that deals specifically with companion animals,” Breder told the Richmond News, adding that there are only provisions dealing with family “property” or family “assets.” As such, pets are usually treated as property.
Breder said pet custody battles take “a huge emotional and financial toll” on people, and it’s important for the government to “take this opportunity seriously to include provisions that deal specifically with companion animals” since she expects pet custody issues to continue to rise.
“It is always very emotional, it’s hard for both sides… There’s a lot of crying,” she said. “People fight over their companion animals just as hard as they fight over their children, and I think that is completely right and it’s the way it should be.”
For Atwal, the process to gain custody of emotional support dog Roger has been long and expensive.
“Getting the dog was not something I took lightly. Even down to just picking him out of the litter and everything in his life is completely curated to him. I cook for him for five hours a week,” she said.
“He is so serious, so playful at the same time. He loves to cuddle… He’s really great at reading a room.”
When she left her partner in 2020, a long and at times “confusing” battle for Roger’s custody began. Due to a custody agreement, Atwal hasn’t seen Roger in over a year.
“He is an extension of me, and it would be completely remiss of me to not fight for him because I’m committed to giving him the best life and I know there’s a reciprocated attachment there.”
As Atwal’s fight to reunite with Roger continues, she expects the litigation will be costly.
Current law is "unclear"
Breder and other stakeholders were invited by the Ministry of Attorney General to consider the FLA’s current approach to pets in July and the consultation period closed earlier this month.
Questions for stakeholders included whether the FLA allows for appropriate treatment of pets upon separation; which level of court is best for dealing with these issues and what orders should it be allowed to make; and what are factors the court should consider when dealing with these issues.
The current law is “unclear” said Breder, and the jurisdiction confusion adds an unnecessary and significant financial burden to people.
Separating couples often argue over who gets the pet, and currently there are three levels of court that can deal with the issue — the B.C. Supreme Court (BCSC) for common law or previously married couples if pet custody is one of several issues to resolve; Small Claims Court for disputes worth $35,000 or less; and the Civil Resolution Tribunal (CRT) for non-common law couples for a dispute worth $5,000 or less.
“The provisions should include the ability for the courts to order sole or joint custody of pets, the consideration of the best interest of the animals, and the ability for litigants (those involved in the lawsuit) to transfer these types of cases to Small Claims,” she wrote in response to the ministry of attorney general.
Breder said the Small Claims Court is usually the best venue to decide pet custody disputes since it’s usually too costly to go to the BCSC. She also thinks that the CRT should not handle pet custody disputes at all since there is a “strong argument” that companion animals are worth more than $5,000 and the CRT doesn’t deal with live witness testimony, which could be critical for determining credibility.
She also hopes the FLA will be updated to consider the best interests of pets during custody disputes. Unlike the rest of the country, said Breder, B.C. has case law that set precedents to put the wellbeing of animals at the centre of decision-making.
The importance of resolving pet custody issues in court has also been acknowledged in Newfoundland Court of Appeal case Baker v. Harmina, where Justice Lois Hoegg said, “I am disturbed by the notion that courts should not spend their precious time and resources determining the ownership of dogs.
“Litigation over the ownership and possession of dogs is far from unknown to the courts, which is an indicator that the ownership and possession of dogs is very meaningful to people.”
And while there is no science to back up how animals are impacted by custody disputes, Breder thinks they might feel “some sense of loss and attachment” if they only get placed with one parent.
Breder’s recommendations are endorsed by RAPS and the BCSPCA.
“Society changes and progresses. Regrettably, one of the areas of law that has not successfully followed advances in social attitudes is the treatment of animals, specifically in this instance the manner in which they are treated in family law,” wrote Eyal Lichtmann, CEO of RAPS.
“Canadian and British Columbian laws related to animal cruelty have evolved in the best interest of pets. We believe the rightful evolution of these same legal principles and considerations should be expanded to the Family Law Act.”
