Marijuana and Other Substances in Family Law

Just blowing smoke?

Marijuana and Other Substances in Family Law

If nondisclosure is the cancer of family law, its chronic illness may be mudslinging. Despite the legalization of marijuana and recent decriminalization of other substances, there remains a common misconception that raising drug use will give clients an advantage in family court.

Decades ago, courts certainly took a much sterner view. Consider the “stubborn, misdirected, trapped, unreliable drug takers” of Robson v Robson, 1969 CanLII 242 (ONSC). “I am moved to ask: What kind of a society do these parents think they live in? Their past conduct makes it plain and I find as facts that they have had no respect for its laws, its morals, its religious beliefs, its family system, or the protection of its frail or young members from the exploitation of narcotics for profit.”

Similarly, the “well-bred, gentle and sensitive” wife in F. v. F., 1970 CanLII 828 (BCSC) was able to obtain a divorce for mental cruelty when her husband refused to stop smoking and selling marijuana, then announced his plans to backpack through South America. “In my view,” the court writes, “taking and selling drugs is in an entirely different category than drinking or even bootlegging alcohol. Drink has both social and legal acceptance. … In this case, I am prepared to believe that his treatment of her was worse than physical cruelty would ever be to this petitioner.”

The modern view, in contrast, is to treat alcohol, marijuana, and other substances as more or less equivalent: problematic only when abused, and even then, of limited relevance. In K.J.P. v B.S.J.G., 2024 BCSC 167, Justice Schultes put it this way: “In itself [substance abuse] is a neutral factor — family law does not treat it as a moral failing that disentitles a party from accessing the full range of rights that would otherwise be available to them. The question is whether the specific behaviour that a party has engaged in while abusing substances relates to a matter in issue.”

Anecdotally, the most common response to complaints that one parent or another is using drugs is an order restricting substances during parenting time. Proving a breach of such an order, however, may require additional and expensive drug testing. And orders will often be mutual — so applicants should consider if they are also prepared to forego a glass of wine after the kids are in bed.

Even without substance use orders, the Family Law Act allows one party to deny parenting time where they reasonably believe the other is impaired by drugs or alcohol. But note that denial without that reasonable belief can attract fines of up to $5,000 under the Act.

More rarely, drug use issues can arise in support proceedings. In Arcand v Arcand, 2023 BCSC 747 (CanLII), Mr. Arcand illegally grew marijuana in the family home. When they divorced, Ms. Arcand was denied spousal support. She claimed ignorance of the extent of Mr. Arcand’s activities, but the court found that she had been aware of and benefited from the drug businesses. After the birth of their children, she returned to work and Mr. Arcand remained at home to grow marijuana and care for the children. Grow-op profits bought the first vehicle for her limousine business and paid for the house where she generated Airbnb income. Compared to Mr. Arcand, who was then 62 and had been incarcerated for smuggling, she had much greater income-earning potential.

While raising drug use as its own issue might have moved the needle in the past, today it is often smoke without fire. Rather than making hazy allegations, counsel should be prepared with specific, well-documented evidence of how drug use affects the issues in a given case.