Pot Shots At Your Parenting: Could Marijuana Cost You Custody Of Your Children?

One of the most interesting recent legal developments is the imminent legalization of marijuana. Aside from projected increases in sales of Bob Marley t-shirts and copies of “Dark Side of the Moon”, separating parents are sure to feel its impact as well. 

Marijuana, like alcohol, is a mood and behaviour-affecting drug. It slows reflexes and impairs judgment – both are essential for child-raising. If you find yourself in court arguing over custody, using marijuana could affect your custody and access rights.

All decisions that the court makes involving children must be done with their best interests in mind. Spending the maximum amount of time possible with both parents is generally in their best interests. This “maximum contact” principle is written out in Saskatchewan’s Children’s Law Act at section 6(5):

6(5) When making an order pursuant to subsection (1), the court shall:

(a) give effect to the principle that a child should have as much contact with each parent as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person seeking custody to facilitate that contact;

And it’s also here at section 16(10) of the Federal Divorce Act:

(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

The key here is that maximum contact must be “consistent with the best interests of the child”. Conduct around your kids that a court finds inappropriate will affect how the maximum contact principle gets applied. Even if it is for legal or medicinal purposes, using marijuana around your kids is a red flag.

The case of Gavin v Whiteside, 2010 SKQB 388, is a good example of this. Mr. Whiteside suffered from a life threatening condition called cyclical vomiting. Despite trying many other medicines, his doctor prescribed marijuana. It was the only drug able to help.

During the times that Mr. Whiteside had access to his son he would occasionally take his prescribed marijuana.  Unfortunately, he had no support system in place to help him care for his child during these incidents. While his marijuana use was for medical purposes, it still placed Mr. Whiteside  in a supervisory capacity of his child while stoned. This was relied upon when ordering that Mr. Whiteside only be permitted access to his son while supervised.

If you are a parent hoping to enjoy marijuana this summer, be responsible. Getting high around a child can be just as harmful, legally speaking, as binge drinking around them. Make appropriate child care arrangements beforehand, and avoid putting yourself into a situation that you could later regret.