Platt v Hutzal, 2015 ABQB 795

Court of Queen ’ s Bench of Alberta Citation: Platt v Hutzal, 2015 ABQB 795 Date: 20151214 Docket: FL03 47957 Registry: Edmonton Between: Michael Platt Applicant - and - Christine Hutzal Respondent _______________________________________________________ Endorsement of the Honourable Madam Justice J.B. Veit _______________________________________________________ [ 1 ] In this morning chambers application, Mr. Platt - the father of a 3 ½ year old daughter, applies for primary care of his daughter with supervised alternate week-end access by the mother.

He is concerned about the fact that the mother lives alone, is not employed, uses marijuana, including medical marijuana, and is epileptic. [ 2 ] The father’s application is allowed: until more information can be obtained about the mother’s potential level of impairment as a result of ingestion of medical marijuana; the mother can only have parenting time with her daughter while she is in the company of a sober adult, specifically, the mother’s aunt.

The amount of parenting time will, however, be as generous as can be facilitated by the aunt; in particular, a reasonable sharing of the Christmas holiday between the parents should be arranged, albeit with the assistance of the aunt. [ 3 ] Given the age of the child, the mother’s drug testing results, the medical information about the mother’s epilepsy, the lack of

any objective assessor of the mother’s parenting capacity, the best interests of the chid require that she be protected while in the mother’s care. 1. Background [ 4 ] The parties are the parents of a 3 ½ year old daughter. The parents have lived together, on and off, for many years. The mother was employed for a short period of time in a retail occupation. The father used to work in the small town where the parties live, and although he still lives in that small town, he is now working in a town some distance away; he would not, for example, be available at short notice to care for his daughter.

The father is currently living with another adult person. [ 5 ] There is a dispute between the parties about many issues, especially the level of the mother’s drug use, the attendance of drug dealers at her residence, the frequency and seriousness of her epilepsy attacks, the reasons why the mother’s employment ceased, the father’s emotional stability, etc. [ 6 ] An incident occurred on June 20, 2015, when the RCMP took marihuana away from the mother, although she was not charged.

The mother states that she has had medical marihuana for her epilepsy in the past; the only information about a medical prescription for marihuana for the mother is referred to below. [ 7 ] The mother has presented two notes, both dated in June, 2015, from her family physician. The first states that the mother suffers from epilepsy and is unable to be employed; the mother indicates that she intends to apply for AISH.

The second states that the parties’ daughter has been a patient of the physician since birth and that there has been no suspicion of abuse, malnutrition or neglect. [ 8 ] The mother has also provided a letter from her chiropractor stating that he has been treating the parties’ daughter since she was a baby and that she has always appeared to be in good health and happy. [ 9 ] The parties accused one another of drug use; they both agreed to do drug testing; the father’s test came back negative; the mother’s test came back positive for marijuana metabolite and phencyclidine (PCP).

The marijuana metabolite was confirmed at 1864 ng/ml; the PCP was confirmed at 25 ng/ml. The mother says that the low content of PCP in her blood test arises not from the ingestion of angel dust but from her epilepsy medication; there is no medical or scientific confirmation of this assertion.

No independent, scientific information is provided to explain the levels of marijuana metabolite in her system on the date of testing. [ 10 ] The mother’s family physician has provided her with a note dated August 31, 2015, indicating that he has known the mother for 11 years, that her last epilepsy seizure occurred in March 2015, and, “currently, she is medically fit for parenting”.

This note was signed prior to the drug testing results being known. [ 11 ] The blood testing referred to above appears to have occurred on August 10, 2015; after an initial screening, the blood sample was sent for additional testing to a laboratory in Ontario, which received the sample on October 9, 2015; the report from that laboratory is dated October 15, 2015. [ 12 ] On September 11, 2015, the mother’s family physician signed a medical practitioner’s form in support of the mother’s application for medical marijuana.

The form states that the mother’s medical condition is epilepsy, to which has been added, “seizures, on medical prescription as well”. In the “proposed daily amount”

section of the form, the form states: Health Canada’s examination of the current available information suggests most individuals use an average daily amount of 1 gram to 3 grams of dried marijuana for medical purposes, whether it is taken orally, or inhaled or a combination of both. The mother’s physician proposed that the mother have a daily amount of marihuana not to exceed 4 grams. It is not clear if, and when, the prescription was actually issued. 2.

The child’s best interests require that the court receive more information about the level of her impairment while taking medically prescribed marijuana and that, in the interim, the mother’s parenting time with her daughter be supervised by a sober adult [ 13 ] The immediate issue is this: until the court can have a trial to determine the truth of the assertions made by the parents against one another, which parenting regime is in the child’s best interests?

The parties, and their lawyers, should immediately make arrangements for the holding of a parenting trial. [ 14 ] The child in question is only 3 ½ years old; she cannot care for herself should her mother have a seizure or become impaired by marijuana. The father is living with another adult person who, presumably, could care for the child if the father were to become in any way disabled; also, the father is regularly employed in arm’s length employment.

On the face of it, therefore, the father is able to care for his infant daughter. [ 15 ] The evidence presented by the mother indicates that her epilepsy is so severe and untreatable that she cannot be employed; because the mother is living alone, there would obviously be similar risks of disabling epilepsy attacks while she is the sole supervisor of her daughter. [ 16 ] The mother clearly is a marijuana user. I assume that some level of marihuana ingestion does not impair a person’s ability to parent just as some level of alcohol ingestion does not impair a person’s ability to parent.

The difficulty arises when the level of ingestion of the drug is unknown. In the absence of ongoing monitoring, we are often left to assess usual levels of impairment from other sources, such as the kind of structure provided by arm’s length employment. In other words, if a person can keep a job, they presumably are at least not heavily impaired during working hours. Where, as here, a parent is living on their own and is not employed, but is an acknowledged, regular, user of a drug such as marijuana, it is very difficult to assess the level of that person’s potential impairment. Spot checks may be appropriate.

I observe that, in the past, the mother and father were usually living together so that there were two people to share the responsibility of parenting.

[ 17 ] In the circumstances here, the court requires more information about the mother’s level of impairment on the day of the drug testing and about the mother’s level of impairment if she were to use only the daily dose of four grams of marijuana that may be prescribed. The mother informed the court that her family physician stated that he was unable to interpret the laboratory findings for the court.

Once information is received about the levels of PCP and marihuana on the date of testing – which was presumably a date chosen by the mother herself – the court will be in a better position to determine if the mother is, reliably, sufficiently unimpaired to parent her daughter. [ 18 ] In the result, on what we have to come to refer to as an “interim interim” basis, the mother will have generous access, including overnight access, to her daughter while the mother is in the company of a sober adult, here the mother’s aunt.

The aunt must undertake not to leave the mother and child alone in a residence; the aunt does not, of course, need to remain in the same room as the mother and child. The aunt should accompany the mother and child on excursions outside a residence. Until further order of the court, the mother shall not take the child outside the general area where she lives.

The amount of the mother’s parenting time will be as generous as can be facilitated by the aunt; in particular, a reasonable sharing of the Christmas holiday between the parents should be arranged, albeit with the assistance of the aunt. [ 19 ] Costs will be determined when the court is able to make a substantive decision on interim parenting. Heard on the 3 rd day of December, 2015. Dated at the City of Edmonton, Alberta this 14 th day of December, 2015. J.B. Veit J.C.Q.B.A. Appearances: Gloria E. Hammermeister, Barrister & Solicitor for the Applicant, Mr.

Platt Brandi Davies, Academy Place Law Offices for the Respondent, Ms. Hutzal