Legal reforms are a result of societal evolution and the influence of that progression on lawmakers. This phenomenon holds true especially in the case of cannabis consumption in Canada. Canada was the second country in the world to legalize cannabis on October 17, 2018. The legalization gave the government the power to control the production, distribution, and sale of recreational marijuana.
In Quebec, the Société québecoise du cannabis (SQDC) was created in order to ensure the legal sale of cannabis in the province. The Institut de la statistique du Québec has observed an increase in the proportion of cannabis consumers from 14% to 20% since 2018. Therefore, the issue of a parent consuming cannabis in shared custody cases is quite common.
Despite its decriminalization, cannabis is still a drug, and its effects need to be taken seriously. The possible effects include: short or long term memory loss, inability to concentrate, poor judgment, and slower reaction time. These effects can affect the safety and security of a child because the parent’s ability to make decisions has been affected. Additionally, the relationship between the child and the parent may be impacted by the parent’s intoxication. It can be argued that if you are high, you are not as physically or psychologically available as a sober parent would be.
Therefore, cannabis consumption can have a similar impact as alcohol consumption on capacity to parent. It is important for judges to examine the circumstances and decide to share custody in the child’s best interest.
When a parent wants the other parent’s custody to be modified because of drug consumption, they need to prove that the other parent has a drug problem. Once that parent is able to prove it to the court, the other parent needs to either prove that they do not do drugs or that their drug consumption does not affect their parental abilities.
The Court of Appeal confirms in Droit de la famille—202065 that a parent who does drugs is not necessarily unable to take care of their child. The court needs to take all aspects of the case into account in order to determine the effects of the consumption on the child. The Civil Code aims to protect the best interest of the child and to prevent any threat to it (art. 33 C.c.Q.).
In order to understand the impact that the parent’s drug consumption on the child. These are some questions that should be answered:
- How long has this person been using drugs?
- What types of drugs do they consume?
- How has this parent tried to stop their drug consumption?
- How does the parent’s drug consumption affect the child their parental responsibilities?
It is very difficult for a parent to prove the other parent’s drug abuse after their separation. They have no way of documenting it and it is not done in public. The proof, therefore, comes from examples from their relationship. However, the proof must also be precise. The more credible the proof is, the more likely a judge is to consider the impact on the child in the context of making their decision.
A parent is allowed to record a conservation between them and the other parent, as proof if it helps determine the best interest of the child. Therefore, it can be admissible. However, secretly recording conservations between the other parent and a third party violates their right to privacy and is not admissible in court.
*For more information you may read the following blog post: Is It Legal to Record Your Child/Spouse’s Conversation in Quebec
Once the proof is established against the parent with a drug abuse problem. That parent has to try to convince the court that their drug consumption does not impact their parental capacity.
This can be proved by any means including by testimony. The judge in Droit de la famille—182087 explains that the witness needs to be credible and tell the truth in order for the court to believe them.
The court can also order a drug test to be done and they have done so in numerous decisions in the past. However, the parent will often be asked to voluntarily take a drug test instead of it being forcibly imposed on them. A parent can refuse to take a drug test by invoking the respect of their fundamental rights under the Charter.
The different types of tests to detect drugs in your system include blood, urine, and saliva. Judges do not give preference to one type of test over another and usually do not specify which test the person should take.
In Droit de la famille—182832, the judge asked the mother to take a blood test, at the father’s request, and there was no motive to do so. Further research needs to be done in order to determine the advantages and disadvantages to each type of test and when they should be done. Additionally, the court can order a test to be done frequently, for example, once a week or before their visit with the child. Therefore, a negative test to serve as a condition for the parent to have custody.
A judge will often order a party not to consume drugs or any substances while they are with their child. This ensures that their drug problem will not affect their capacity as a parent. Respecting the prohibition will help strengthen the parent’s custody case to either gain or increase time.
The age of the child is also taken into account when determining the effect of the parent’s drug consumption.
It is also important to understand the SQDC’s qualification of the two components of cannabis: THC and CBD.
THC is the main psychedelic component of cannabis. The higher the concentration of THC, the more the consumer will be affected. CBD is usually present in a smaller quantity than THC. It can help with sleep and relaxation as well as lessen the negative effects of THC.
Drug consumption is now viewed in the same way that alcohol consumption is. The problem exists when the consumption becomes substance abuse and impacts capacity to parent. The court, therefore, needs to consider the secondary effects of this consumption on a child. The younger a child is, the stricter the court will be on the parent. The best interest of the child is of the utmost importance and at the center for any decision made with respect to a minor child.
Cannabis in Quebec:
https://educaloi.qc.ca/en/capsules/7-things-you-should-know-about-cannabis-in-quebec/
Limiting contact between a parent and a child:
https://educaloi.qc.ca/en/capsules/preventing-or-limiting-contact-between-a-parent-and-a-child/
Substance abuse resource:
