It is summertime in Vancouver. A walk past the Robson Square courthouse yields a peculiar mélange, redolent of urban life: the aromas of fried food, automobile exhaust, and marijuana mingle. As of today’s date, marijuana is still illegal (and therefore arguably cool). But by Halloween of this year, recreational marijuana will be legal throughout Canada and we squares of the family law bar will have to come to grips with the devil’s lettuce.
Legal marijuana has the potential to impact most areas of a family law case. When it comes to growers and vendors of marijuana, there will be questions as to how to treat pre-legalization years of business for the purposes of determining income for child and spousal support. Courts will have to consider how to properly address contingent liabilities for pre-legalization taxable income not previously disclosed. Marijuana has become a business like any other, and that will be reflected in the area of family law as it is elsewhere.
But the shadow of the pot leaf will lie most heavily on cases involving children. There is at present no clear consensus on the extent to which marijuana use impacts a person’s capacity to parent. And, there is a dearth of academic writing on the subject of marijuana and parenting; that which exists remains divisive.
Into this vacuum tread the Courts. In all cases involving children, the Court is challenged with the near-impossible task of considering all the facts and deciding what is in a child’s best interests. The interplay between that test and marijuana use is unclear and likely to be highly dependent on the adjudicator’s own view of drug use.
Of course in British Columbia of all places, marijuana use is no novelty. Courts have frequently been asked to consider a parent’s use of marijuana. In general, courts have become increasingly tolerant as the widespread social acceptance of marijuana becomes clearer. In this regard, in W.S. v. C.S., 2017 BCPC 376, Judge Skilnick noted that recreational marijuana use will likely be equated with social drinking in the near future.
Notwithstanding the fact that marijuana is still illegal, Courts have treated marijuana use with varying levels of opprobrium.
In Zazula v. Zazula, 2016 BCSC 288, Mr. Justice Affleck was “loath to criticize” a parent for his use of marijuana when the parent suffered from a chronic and partially disabling condition. At the same time, Mr. Justice Affleck could not ignore, in reaching his decision respecting custody, the use of marijuana in the parent’s home.
In C.L.T. v. S.L.R., 2014 BCPC 131, Judge Marchand did not order but “simply [said] it would be helpful” if the mother—who had a longstanding and severe addiction to cocaine, which addiction was in remission—“significantly reduced or eliminated her use of alcohol or marijuana”. Judge Marchand ordered unsupervised parenting time for the mother.
And In D.G. v. A.M. , 2013 BCPC 134, a parent admitted to daily marijuana use, but only after the child has gone to sleep and never to the point that it interferes with his ability to care for the child. The child was left in the full-time care of the father.
When Courts do criticize marijuana use, they often seek to sanction the behaviour rather than the parent by prohibiting the parent from using marijuana, rather than limiting the parent’s time outright.
In L.L.H. v. T.W.H., 2015 BCSC 1433, a parent’s daily use of marijuana was seen as problematic, notwithstanding the parent’s evidence that he used it to treat his chronic pain. The Court found that absent medical evidence, it was a reasonable restriction on the parent’s parenting time to preclude the use of marijuana or other non-prescriptive drugs when exercising parenting time with children. See also R.W. v. B.A., 2015 BCPC 58; N.L. v. D.L., 2013 BCPC 402; R.L.H. v. T.R.P., 2017 BCPC 179.
I recall a court hearing in which the respondent mother sought to restrict my client’s parenting time, largely on the basis that my client (a member of a respected profession) was a habitual consumer of marijuana. Counsel for the mother pounded the table in outrage at the father’s thrice-weekly use, directing the judge to pictures of a vaporizer and declaiming that my client “was not normal!” I suggested there was little difference between a glass of red wine at the end of the day and a few puffs on a joint. The judge, perplexed and uncertain, split the difference: one week of supervised parenting time followed by unsupervised parenting time thereafter.
That is not to say that a concerned party is powerless to oppose the parenting time of a stoned guardian.
Section 61 of the Family Law Act (“Denial of Parenting”) sets out remedies where a parent “wrongfully denies parenting time” (i.e., prevents the other parent from having time with the child according to an order or agreement). Section 62 provides a set of circumstances where denial of parenting is “not wrongful”; one of those circumstances is where a parent believes the other parent was “impaired by drugs or alcohol at the time the parenting time or contact with the child was to be exercised”. Thus a parent who has reasonable grounds to believe that the other parent is too intoxicated to parent may have a defence to an allegation of denial of parenting time.
This does not mean that parenting time can be denied based on suspicion alone, or that parenting time can be denied on the basis that the other parent uses drugs generally (as opposed to being intoxicated at the time of parenting time).
For example, in S.K.B. v. D.S.B., 2017 BCSC 2569, the mother had a concern that the father was using drugs, and refused the father parenting time unless and until he completed a drug test, including for marijuana. The father refused to take the test, and the mother accordingly denied the time. The Court found the mother’s denial to be “wrongful” in that the father had a legal right to parenting time, and there was no agreement or order justifying the refusal. Critically, there was no evidence that the father was intoxicated at the time his parenting time was to take place. The mother’s denial of parenting time was found to be wrongful.
In the end, the court will have to consider cases involving marijuana on an individual basis, gauging the effect of one particular person’s use of marijuana on that person’s particular child. Some of the questions the Court will need to consider are as follows:
1. Is there are a history of abuse of marijuana?
2. Is there a history of abuse of other substances such that marijuana use might be a “warning flag”?
3. Does the child have particular needs that might be difficult or impossible to meet if the parent having parenting time is intoxicated?
4. Is there objective proof (preferably in the form of a forensic drug test) that drug use is taking place?
5. Is there any evidence that drug use is taking place during the parenting time itself?
6. Are there medical issues (whether diagnosed or not) that might justify the marijuana use (whether or not the marijuana is actually prescribed)?
Ultimately, there will be no universal rules of easy application, but instead a nuanced and fact-specific analysis of each family.