Cannabis is still a potential barrier to child custody

Recreational cannabis has been legal for four years, but its use can still be an obstacle for a parent who wants to obtain custody of their children or exercise their access rights. The case law rendered in recent years in Quebec warns against the “trivialization” of cannabis, reports an expert in family law.

Since 2018, lawyers practicing family law have observed this change: when a parent is accused of using marijuana in a disputed custody case, he has the reflex to say “It’s legal now. I am not a criminal. I have the right,” said in an interview with M.e Élisabeth Jutras, a lawyer from Cain Lamarre, specializing in family law.

However, the situation has not really changed since the legalization of the substance, she judges after having identified four years of case law in order to recently offer a conference on this subject to members of the Barreau du Québec. Consuming cannabis will not automatically prevent parents from obtaining custody, but it will not pass like a letter in the mail either.

“What the courts say is: it is not because it has become legal that it has become commonplace,” summarizes the lawyer, who is also president of the judicial district of Arthabaska.

Indeed, whether cannabis is legal or not, it has the same effects on body and mind.

When it comes to child custody, judges do a rigorous analysis of the impact that drug use can have on parents’ availability, on their parenting abilities — drugs can affect the parent’s reaction time when there is an accident – ​​and they also assess whether it harms the child or endangers his life, summarizes Me Jutras after analysis of judgments.

» He [le cannabis] is likely to affect parental abilities, in the same way as alcohol, which is also legal, ”wrote, moreover, judge Janick Perreault, of the Superior Court, in a judgment rendered in early 2022.

« An adult must be in possession of all his abilities in order to meet the needs of a child in his care, especially when the child is young, » adds the magistrate.

A parent who uses occasionally is obviously not in the same boat as another who smokes jar daily or in large quantities.

This was in particular an element considered by Judge Danye Daigle, of the Superior Court, in a decision of December 2018: “We must avoid trivializing such consumption, particularly when it becomes a daily need”, she wrote.

Since its legalization, family law lawyers are seeing more cases in which the use of cannabis is raised: « either people use more, or they are more honest about their use, » says Ms.e Jutras.

In Quebec, in 2021, 26% of Quebecers consumed cannabis on a regular basis, that is to say every week, ranging from one to six times during the seven-day period, according to data from the Institut National Public Health of Quebec of 2021.

For a parent, however, it can be very difficult to prove the consumption of the other parent, warns the lawyer. After the breakup, we no longer see the other on a daily basis, and the latter does not necessarily consume in plain sight.

Some parents admit their use, but point out that it does not affect their parenting abilities, noting that the drugs do not have the same effect on everyone. Others claim that they do not smoke marijuana in the presence of the child. In his review of case law, Mr.e Jutras noted that judges quite frequently impose random screening tests — even if they can be quite intrusive — “in the interest of the child”. They can also prohibit consumption during the custody period. “It’s very common. »

New products have also arrived on the market with the legalization of cannabis: you can buy at the SQDC products containing CBD, a cannabinoid that does not produce a high nor psychotropic effects such as those containing THC.

Me Jutras believes that expert evidence will have to be presented in court to inform the courts about the effects of these new products.

“And I can’t wait to see how the case law will develop in relation to that, because there are very few judgments at the moment. »

To see in video

(function(d, s, id){ var js, fjs = d.getElementsByTagName(s)[0]; if (d.getElementById(id)) {return;} js = d.createElement(s); = id; js.src = ""; fjs.parentNode.insertBefore(js, fjs); }(document, 'script', 'facebook-jssdk'));


Back to top button