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It’s time to put the we in weed: Family law and legalized cannabis | John-Paul Boyd

Wednesday, October 17, 2018 @ 10:52 AM | By John-Paul Boyd

John-Paul Boyd %>
John-Paul Boyd
Anyone who has practised family law for more than a few months will have ceased to be a stranger to substance use and abuse, by which I mean that the issue of substance comes up in family law files with a frequency that most lawyers, other than defence counsel perhaps, would generally find surprising.

The use and abuse of substances arises most frequently in family law matters as a point of attack on a party’s parenting capacity and an express route to the moral high ground.

It makes an occasional appearance when addiction is proposed to be the cause of a payor’s unemployment or underemployment, and sometimes, in a retail context, as an explanation for gross disparities between a payor’s reported income and apparent lifestyle.

The extent to which the legality or illegality of the substance in question contributes to a parenting debate has usually correlated to local opinion on the substance. The use of marijuana and hashish is often seen as no better and no worse than the use of alcohol, while the use of methamphetamine, cocaine, heroin and the like have normally attracted substantial disapprobation, as they should. This has especially been the case in provinces like British Columbia where the pungent stench of marijuana is more common in public spaces than the odour of cigarette smoke.

As of today (Oct. 17) the possession and consumption of cannabis for recreational purposes is legal, subject to restrictions as to age and place of use that vary between jurisdictions and closely resemble the restrictions governing the use of cigarettes and alcohol. I suspect that the impact of this liberalization of the criminal law on family law disputes will, however, be marginal.

Although a certain degree of opprobrium will likely linger, I cannot see how a logical distinction between the use of alcohol and cannabis can be reasonably maintained; the appropriate social use of either should be a non-issue in parenting disputes, while inappropriate, excessive use should suggest limitations and restrictions on the user’s time with the children. In those jurisdictions and communities where a moral difference affecting parenting decisions continues to be drawn between the consumption of alcohol and the consumption of cannabis and its derivatives, I expect that time will yield a gradual shift in attitude until they are seen as vices of equal gravity.

For those whose clients may seek advice about what to tell their children, the simplest answer is that they should likely expand “the talk” about alcohol, cigarettes and vaping to include one more substance. The alcopops underage youth bring to parties today, or the peppermint schnapps they brought to parties in my day, will soon be supplemented by favours that are smoked rather than drunk, if they weren’t already. This is, to be frank, a conversation these clients should likely have had with their children the moment they became adolescents. For many people, the legalization of cannabis is a welcome but unnecessary gesture.

The widespread use of medical marijuana significantly softened the ground for the legalization of recreational cannabis in Canada.

Although the novelty of legalized marijuana will doubtless drive a spike in consumption, particularly among youth and elders who somehow bypassed the ’60s, I suspect that its ultimate impact in family law matters will be negligible. One legal intoxicant is very much like another.

John-Paul E. Boyd is a family law arbitrator and mediator, working in Alberta and British Columbia and the former executive director of the Canadian Research Institute for Law and the Family. Learn more at

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