Cannabis Legalization and Family Law

FALQUEZ WARKENTIN, Claudia

Much has been said about the merits of legalization of cannabis in Canada. Regardless of where people fall within the acceptance – condemnation spectrum, it is here to stay. While Parliament has provided the overall framework and limitations, judicial decisions will now further shape its boundaries one case at a time.

To date, the courts have dealt with the use of marijuana, in the context of the breakdown of a matrimonial/common law relationship, as a substance that falls into the same category as other illegal, impairing and addiction-inducing substances.  The severity or leniency of the judicial decisions varies depending on local provincial laws, applied on a case by case basis, which will now be limited by a new legislative threshold.

In Family Law the use of marijuana has historically impacted the issues of parenting and the generation of income for the purposes of determination of child support and spousal support.

In the context of parenting, the legal test to decide custody and access to children of the relationship is the best interests of the children.  The use of marijuana by a parent or both parents has commonly been wielded as a sword that is believed to lead to impaired judgement and poor decision-making, lowered reflexes, and on many occasions the culprit that lies at the root of conflict in the relationship, all contrary to the best interest of the children.

The consumption of marijuana has been traditionally compared with the consumption of alcohol, and even cigarette smoking, cast as a moral judgement on the user and his/her ability to make decisions in other areas of their lives believed to be equally reprehensible.

The more lenient opinions held about parents that consume marijuana approve of its use so long as the conduct is judicious when caring for children.  For example, using it outside of the home when the children are present; or after they have gone to bed; or ensuring they do not drive while impaired; or not using it to the point that it interferes with the normal daily life such as leading to work absenteeism, falling asleep while the minor children are in their care, failing to feed the children, failing to meet scheduled activities, etc.

The stricter more conservative views advocate for zero tolerance on the consumption of marijuana, or alcohol for that matter, to protect the environment the children live in where they can learn and grow safe from addictive influences and conflict.  From this perspective, marijuana is viewed as a mind-altering substance that can lead to conflict between the parents, loss of trust in the other parent’s ability to care for the children, questionable parent behaviour that is dangerous and irresponsible; overall an inappropriate substance to expose the children to.

Measured against the above sliding scale, the excessive consumption of marijuana to the point of addiction will most likely lead to limitations on custody and access of the children.  On the more lenient side of the spectrum, courts are more likely to impose certain conditions on its use to spare the children from direct detrimental effects, not unlike social alcohol drinking or smoking cigarettes, for the health and safety of the children that include designated smoking areas in the house away from the children and not driving when under the influence.

When assessing the consumption of marijuana, the court would most likely make enquiries about the history of use of marijuana, the history of abuse of other substances, when marijuana is most likely to be used and whether it is in the presence of the children, medical issues of the children and that require a stricter awareness and level of attention from the parent when caring for the children and medical need by the parent.

The legalization of marijuana also raises issues associated as to whether the sale and earnings generated from a previously illegal activity should now be revisited retroactively to include such earnings into the calculation of income; or to include such earnings on a going-forward basis.

Considering the multitude of factors that impact the determination of the best interests of the children, the use of marijuana being just one more factor to look at, the impact will slowly develop by the court system on a case by case basis and as prudent parents just make sure your children are safe.

Claudia Falquez-Warkentin is a partner at Davis Spine Falquez LLP, practicing in the areas of family law and wills & estates law. Claudia has two law degrees, having earned her first law degree in Colombia, South America and then graduating from the Faculty of Law at the University of Western Ontario and is the first woman with foreign legal training to be called to the Ontario Bar.  An active participant in the community, Claudia has served as a Director in the Hispanic Ontario Lawyers’ Association (currently the Canadian Hispanic Bar Association), Vice-President of the Canadian Children’s Organization, mentor through the Canadian Colombian Professional Association, President of the Cross Cultural Learner Centre, Chair of the Canadian Colombian Professional Association (London Chapter), Director of the Sunfest Arts Committee and at Bethany Centre. 

Please note that this article was first published in the Spring 2019 Edition of BEST Magazine. To access the original article, please visit: http://online.flipbuilder.com/rfif/awax/