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While the legalization of cannabis in Canada may have eliminated the criminal element of its use, a recent family law decision in Quebec demonstrates that legal drug use can result in the loss of custody rights, where the drug use is deemed abusive.

What Happened?

The parents began living together in 2014. At the time, both used cannabis on a regular basis, consuming up to 5 or 6 joints per day. The mother experienced severe anxiety and had been prescribed anti-depressants.

In the fall of 2015, the mother found out she was pregnant and stopped taking her anti-depressants. However, despite her doctor’s recommendations, she continued to use cannabis on a daily basis during her pregnancy. 

When their child was born in 2016, he experienced withdrawal symptoms. He was feverish and had tremors. A urinalysis showed the presence of THC in his body. His withdrawals lasted about a week.

After the child’s birth, the father stopped using cannabis.

In 2017, the couple separated. At that time, the mother had custody of their son, while the father had access rights. Later that year, the couple agreed to shared custody beginning in 2018. However, in 2018, the mother’s health began to deteriorate and she increasingly asked the father to take care of their son during her custody time, seeing the son only five to 14 days per month.

In May 2018, a court gave full custody to the father. The judge also ordered the mother not to consume or be under the influence of cannabis or other drugs in the presence of the child and prohibited the use of cannabis or other substances by anyone in the presence of the child. Despite this order, the mother continued to use cannabis during her access periods after the child had gone to bed.

A few weeks later, the mother found out she was pregnant with her new live-in boyfriend. She continued to use cannabis during the pregnancy and the second child was also born with withdrawal symptoms.

Issues

The mother sought joint custody of their 3-year old son. She stated that she had no intention on ceasing her use of cannabis, but would respect any court order on the issue if she obtained joint custody. She emphasized that her cannabis use was legal and added that her parental abilities were not diminished by it.

The father sought full custody of their son on the grounds that the mother’s use of cannabis seriously affected her parenting abilities to the point of rendering her unable to assume shared custody.

Decision

Under the Civil Code of Quebec, the main criterion guiding the court in custody decisions is the best interests of the child. In addition to the moral, intellectual, emotional and physical needs of the child, his age, health, character, family environment and other aspects of his situation must be taken into consideration.

The court stated that, except in exceptional circumstances, the interest of the child generally includes maximum contact with each parent. However, there is no presumption in favour of joint custody.

Despite the mother’s contentions, the court found that her use of cannabis was abusive and that she was an addict. The court noted that she had continued her use cannabis against her doctor’s advice and in contravention of a previous court order. It found that her addiction, in addition to her anxiety issues, affected her parenting abilities and presented a serious risk that she could not adequately meet the child’s needs in shared custody. 

As a result, the court gave the father full custody. The court gave the mother access rights on weekends, but prohibited her from using cannabis or any other drug during her access time.

Get Advice

Separation and divorce are challenging for everyone involved.  When dealing with custody or access disputes, matters involving spousal and child support, the division of assets, and other family issues, emotions can be your worst enemy. Having an experienced family lawyer on your side can help you stay focused and resolve disputes as quickly and amicably as possible.

At Campbell Bader LLP our family team has collectively spent more than twenty years advising clients about family disputes, including those involving high net worth individuals or complex matters.

We value and incorporate collaborative family law principles into our practice, but we’re smart enough to recognize when that approach won’t work for you and we adapt our strategy accordingly. To learn more about how we can help you, contact us online or at 905-828-2247.