After nearly a century of cannabis prohibition, on October 17, 2018, the Canadian government made recreational cannabis legal.
So what does this mean for divorcing couples?
There are many causes of divorce. But of all divorces, the ones they tend to be most acrimonious are the ones where the spouses ended the marriage over parenting conflicts. Just because two people fell in love, got engaged, married and had children together does not necessarily mean that they share the same family values or parenting philosophy. They may never have before discussed, or inquired of the other’s views on, child rearing. Moreover, one or both parents may have developed new or different values after child-birth. Whatever may have occurred after the children were born that led to marital conflict and divorce, parents who separate over approaches to childcare hold strong views on what should occur in the other parent’s home and when the children are with that other parent.
This is where the legalization of marijuana poses a problem. Until October 17, 2018, there was no issue. Cannabis was an illegal drug. Possessing or using cannabis was illegal. That meant that any parent who was responsible for the care of a child would not be permitted to use marijuana. Thus, the subject of cannabis and divorce was fairly straightforward. But now that the possession and use of cannabis is legal, the dilemma is how to manage this in parenting disputes.
On one hand, ingesting any ingredient that causes parents to suffer compromised mental acuity and limited care-giving capacity should be cause for concern in any parenting plan. After all, the Divorce Act and the Children’s Lawyer Reform Act expressly stipulates that parenting plans should be based on a child’s best interest which includes the ability of a parent to properly care for a child. Clearly, cannabis use, like alcohol, limits a parent’s ability to provide such care. This concern is exacerbated in cases where a parent has a history of alcoholism or drug abuse.
Does this mean that a parent is not allowed to have a glass of wine with dinner ? Does this mean that a parent is not permitted to ingest a cannabis edible ? What about doing so after the children go to sleep?
I am currently involved in a case whereby the father historically smoked marijuana during the marriage, along with his wife. Following separation, the wife proclaimed to no longer smoke marijuana. The father now admits that he did, and does, smoke marijuana but that he does so responsibly and that is no different than drinking wine or beer. However, in this case, the mother is alleging that their young child would be placed in a dangerous situation should the father be permitted to smoke cannabis while the child was in his care.
In this case, the mother cites examples of where the father was unable to function when he smoked marijuana. She claims that he became very sleepy and lethargic. She claims that if the child required any attention while he was in such a state, the child would not receive the necessary care she requires. In this case, the mother is seeking a parenting plan that prohibits the father from smoking marijuana when the child is in his care. Moreover, based on the child’s vulnerability, this mother is asking for proof that the father is not using cannabis. She is asking for the father to deliver regular urine tests to prove that there is no cannabis in his blood.
Is this reasonable?
What about the times that the father is not in a caregiving role, such as when the child is with her mother ? Can he smoke then ?
What about medical marijuana use ? If a parent who is under medical care can take prescription medication for pain, why can’t a parent who is prescribed medical marijuana ?
These are all very important questions that require answers. It is likely that the answers will come from cases, like mine, decided by judges. Time will tell how judges will interpret cannabis legalization and its impact on parenting plans following separation and divorce. It may be that judges will look at the situation in context with an examination of past problems. It may be that the judges will require evidence of parental incapacity before imposing any restrictions, much the same way as judges require proof of domestic violence before granting a restraining order.
I invite you to share with me any cases, both inside court and in out-of-court settlements, that have addressed this novel issue.
Editorial Note: Originally published in 2018 shortly after cannabis legalization in Canada, this article still resonates with today’s family law practitioners and separating parents. While some case law has since clarified aspects of cannabis use in parenting contexts, many of the questions raised here remain relevant and are still being actively debated and litigated. As always, parenting plans must reflect the best interests of the child—whether involving legal substances or otherwise.
Steve Benmor, B.Sc., LL.B., LL.M. (Family Law), C.S., Cert.F.Med., C.Arb., FDRP PC, is the founder and principal lawyer of Benmor Family Law Group, a boutique matrimonial law firm in downtown Toronto. He is a Certified Specialist in Family Law, a Certified Specialist in Parenting Coordination and was admitted as a Fellow to the prestigious International Academy of Family Lawyers. Steve is regularly retained as a Divorce Mediator/Arbitrator and Parenting Coordinator. Steve uses his 30 years of in-depth knowledge of family law, court-room experience and expert problem-solving skills in Divorce Mediation/Arbitration to help spouses reach fair, fast and cooperative divorce settlements without the financial losses, emotional costs and lengthy delays from divorce court.
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