family services or concerned family and community members, the foremost consideration the courts must make is the ‘best interest of a child’. This includes the safety of the children, the fulfillment of their physical, nutritional, and mental needs, appropriate socialization, education etc. The ability of the parent or guardian to cater to the ‘best interest of the child(ren)’ may however become questionable where there is a history, past or present, of drug and/or alcohol abuse.
In Canada, drug and alcohol use or abuse has indeed played a pivotal role in the courts determining the capacity of a parent or guardian to provide the parental care required to secure the ‘best interest of a child’. In fact, in August of 2011 the Ontario courts in Booth v Roy even granted custody away from alcoholic parents to the grandparents. In the past the Courts have also ordered either one or both of the parents to provide regular blood, urine and hair samples in order to be tested for any kind of drug, alcohol or substance abuse. Nevertheless, the question then arises, of particular interest to family law lawyers and practitioners is whether the legalization of Cannabis will somehow affect the determination of the court in deciding whether the use of cannabis by either parent or guardian undermines the welfare and ‘best interest of the child(ren)’.
On October 17th, 2018 the coming into force of the Cannabis Act would bring to an end an approximately 100 year prohibition on Marijuana or Cannabis. The legalization would usher in a sum of questions as to the impact the legalization of Cannabis or Marijuana may have on certain aspects of the law. A lot of these questions are difficult to answer just yet, however there have been a few cases decided upon which may reflect, although inconclusively, a shift in the judicial attitude towards the use of cannabis.
In a recent judgement by the Supreme Court of Newfoundland Justice Donald Burrage in true Nobel prize winning eloquence would quote ‘The Times They Are A Changing (Bob Dylan)’ when deciding whether Mr. Murphy in R. v. Murphy 2018 NLSC 256 should serve jail time for the possession of Marijuana. Justice Donald Burrage would state that ““judges are entitled to take stock of changes in social mores”. The legalization of Marijuana or Cannabis too, does indeed, reflect a shift in social mores. Where once marijuana users while under the influence of cannabis were described as those who “‘los[e] all sense of moral responsibility’” and turn into “’raving maniacs … liable to kill using the most savage methods of cruelty.’” But things now ‘are a changing’ so it seems. Where once, upon the conviction of a cannabis related offence, jail time would be absolutely certain, now the courts are willing to wander off the trodden path, so it seems, in order to incorporate the shift in social mores – namely the legalization of marijuana.
However, in terms of family and custody law, the mere legalization of marijuana does not necessarily lead one to assert that those who partake in its consumption have nothing to worry about in custody proceedings. The consumption of alcohol is and has been legal, yet in Booth v. Roy the consumption of alcohol played a pivotal role in favor of the grand parents getting custody. It appears whether cannabis is legal or illegal the courts in order to uphold the welfare of the child(ren), his/her or theirs “best interest”, primarily focus on the present condition of the parties, their present lifestyles, their present parenting capabilities; their present ability to provide a stable home environment for the child(ren), their present ability to provide the general psychological, spiritual and emotional welfare of the child(ren). and their present ability to provide a good example and be appropriate role models for them.
In relation to the Cannabis consumption in custody proceedings questions, the answer is a difficult and until now uncertain one to give. Nevertheless, it appears the courts are perhaps willing to take a slightly more relaxed approach to the consumption of it, however like alcohol where the consumption of cannabis is found to detriment the welfare and ‘best interest of the child(ren)’ the case for custody of the consuming party may be harmed. MEHDI AU has experienced Custody lawyers on staff to help you navigate any scenarios, please get in touch with us today to discuss your case.
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