N.L. v. D.L. Date:, 2013 BCPC 402

Citation: N.L. v. D.L. Date: 20130918 2013 BCPC 0402 File No: 16618 Registry: Smithers IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: N. L. APPLICANT AND: D. L. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W. F. M. JACKSON Counsel for the Applicant: T. Hudson Counsel for the Respondent: K. Pollock Place of Hearing: Smithers , B.C.

Date of Hearing: September 5, 2013 Date of Judgment: September 18, 2013 Issues [ 1 ] This matter was scheduled for a family case conference and failing resolution the issue came on for hearing. The issue centres on overnight parenting time for the father. The children’s mother is opposed because of the father’s marijuana use. Background [ 2 ] The parties began cohabitation in March 2009. They were married in April 2011.

Two children were born of the union: KGL, born [omitted for publishing]; ZAL, born [omitted for publishing]. [ 3 ] The parties separated in January 2013. [ 4 ] Litigation on this matter in the provincial court began in April 2013. [ 5 ] There was a Consent Order that DL pay child and spousal maintenance to NL on May 8 th , 2013. [ 6 ] On June 5 th , 2013, DL filed a Notice of Motion seeking overnight parenting time. There was a Consent Order on June 20 th , 2013 that DL have parenting time for a portion of three days each week.

This parenting time did not include any overnight parenting time for DL. [ 7 ] In addition the use of a journal log was ordered and it was specified that “neither parent shall care for the children will (sic) under the influence of marijuana or another controlled substance”. [ 8 ] DL applied by Notice of Motion on July 15 th for an interim order for overnight parenting time. Evidence [ 9 ] The parties filed several affidavits each. These affidavits are largely contradictory.

That is particularly so concerning the issue of marijuana use and what effect it might have on DL’s ability to parent the children. [ 10 ] NL in her affidavit of April 16 th , 2013 (paragraphs 15 and 16) states that DL was a heavy user of marijuana. She indicated that he used marijuana daily at the time of separation, while at work, when he had care of the children and would take the boys in the vehicle “while he was intoxicated” (by marijuana). [ 11 ] DL in his affidavit of April 30 th , 2013 (paragraph 4) stated that NL was a heavy user of marijuana.

He went on to state that he quit after separation and as of that date in April had not used marijuana since February 2013. He also specifically denied using marijuana at work and specifically denied driving the children while intoxicated by marijuana or alcohol. [ 12 ] NL in her affidavit of May 2 nd , 2013 (paragraphs 3 through 5) dismissed DL’s statements as to how much marijuana he used as well as her usage. She specifically denied daily use by herself.

She repeated her concern that DL used marijuana daily, at work and drove under the influence and added that those issues were a source of regular conflict between her and DL. [ 13 ] DL’s next affidavit of May 2 nd , 2013 (filed May 3rd) recited, with attached email communications, the animosity between the parties without any specific reference to marijuana. [ 14 ] NL’s next affidavit of May 6 th , 2013 dealt exclusively with financial matters. [ 15 ] DL then provided an affidavit dated July 17 th , 2013 apparently in support of his notice of motion of July 15 th , 2013.

It basically dealt with both the children’s need for more time with their father and stated in paragraph 8 his ability to parent the boys three full days and nights every week to enable NL to obtain employment. In paragraph nine he added that: “I feed the children healthy food and have routines for them that include nap times and play times. I do not smoke marijuana around my children whatsoever and have not been under the influence of marijuana at all for any of my visits with the children in the last six months.

I am completely attentive to the needs of the children when they are in my care.” [ 16 ] That affidavit attached an email from NL (

C) that stated that she strongly opposed overnight parenting time for him until he volunteered for drug testing. She also added that the boys slept with her which the court infers means they have a set routine with her. [ 17 ] NL produced an answering affidavit, dated July 19 th , 2013 which affirmed her concerns over DL’s marijuana use and her desire that he undergo drug testing before any overnight parenting time. She also offered to take identical tests. [ 18 ] DL swore an affidavit August 28 th , 2013, filed September 3 rd , 2013.

That affidavit rejected the efficiency of drug tests for him because he would test positive because of previous marijuana use with the previous three months (paragraph 2). He attached as Exhibit A an internet printout concerning hair follicle testing that indicated such testing can reveal marijuana use any time within the previous ninety days.

[ 19 ] In paragraph 3 of that affidavit, DL admitted that he had used marijuana “on several occasions since being separated from NL.” He added that his use was not often and the last was on August 18 th , 2013. [ 20 ] In paragraphs 5 and 6 the affidavit repeated DL’s earlier assertions as to the heavy use of marijuana by both parties during their relationship. [ 21 ] This affidavit was produced and served in less time than required by the rules. Accordingly, NL provided another affidavit dated September 5 th , 2013 on the day of the hearing.

This affidavit recited examples of poor behaviour by DL, such as an oblique reference to the court proceedings made to the children that was video recorded by her and damage done by DL to KGL’s clothing.

Submissions [ 22 ] In basic terms, counsel for DL submitted that there was no evidence to support a finding that DL's admitted limited use of marijuana reduced his ability to parent. [ 23 ] Counsel for NL referred to the various affidavits to suggest that overnight visits were not in the best interests of the children due to DL’s “rage just below the surface.” Counsel added that there was evidence, particularly in NL’s last affidavit to conclude that DL has “perpetuated his hostility towards NL.” He continued that there is no evidence that NL has perpetuated her hostility towards DL.

Analysis [ 24 ] The central question before the court is whether expanded parenting time for DL to include overnight is in the best interests of the children.

Section 37 of the Family Law Act, makes such considerations mandatory. [ 25 ] Considering the health and emotional well-being of the children, there is the conflicting evidence that KGL suffers from anxiety.

That is NL’s position and there is a general denial from DL. [ 26 ] Considering the views of the children would be inappropriate in light of their young ages of one and two. [ 27 ] Considering the nature and strength of the relationships of the children with others, the children have strong relationships with both parents. [ 28 ] Considering the children’s history of care, the boys have spent more time, particularly at night with their mother.

They have, however, been in the unsupervised care of their father for a portion of three days per week since June 2013, without incident. [ 29 ] Considering the children’s need for stability, an interim incremental variation in parenting time should have little or no detrimental effect. [ 30 ] The issue centres, though not exclusively, on s37(

f) of the Family Law Act . That is the consideration of the ability of each guardian to exercise parental responsibilities. NL asserts that DL’s marijuana use reduces that ability. He denies the facts upon which she basis her assertion: which are marijuana use around the children and driving them in a motor vehicle under the influence of marijuana. [ 31 ] The remainder of the s37(2) factors are irrelevant to the analysis of the evidence in this case. [ 32 ] There is an unfortunate lack of forensic evidence on certain points.

While the possession and use of marijuana is illegal, there is no forensic evidence on the effect marijuana would have on a person’s ability to parent. Similarly, DL stated in his last affidavit that he would test positive for marijuana use because of the 90 day “window of detection”. Counsel for NL submitted that the tests can pinpoint the exact times or fluctuations in consumption of marijuana. While that may be true there is no forensic evidence to support that assertion. [ 33 ] The case at hand has a number of similarities to a decision of the Supreme Court, Schloegl v McCroary 2008 BCSC 1722 .

In that case, the mother alleged alcohol and marijuana abuse. Their son was two years old. The father argued that he had not used drugs or alcohol for over a year. The mother did not trust the father to remain drug and alcohol free and insisted on limited “access” on strict conditions. He had agreed to random drug tests. In granting the final order of custody to the mother, the court held that in the absence of any continuing abuse of alcohol or drugs there was no basis to depart from the maximum contact principle. The father was granted overnight parenting time on condition of random drug testing.

Decision [ 34 ] The court is left with deciding if overnight parenting by DL is in the best interests of the children in light of his admitted use of marijuana at times when he is not in contact with the children. [ 35 ] In a purely logical analysis, because DL has had unsupervised parenting time without drug testing there would appear to be no evidence to establish overnight contact is not in the children’s best interest. [ 36 ] However, this is DL’s application and the onus rests on him to establish such overnight contact is in the best interests of the children.

As such, in light of his admitted continued use of an illegal substance the court shares NL’s suspicions. [ 37 ] Accordingly, this court concludes that both overnight parenting time and the provision of drug tests are in the best interest of the children. This will allow greater bonding between DL and his sons. It will also provide the court with evidence that may be used to verify his compliance with the earlier court ordered condition to not “care for the children… under the influence of marijuana or another controlled substance.”

[ 38 ] The court makes the following interim order as follows:

a) Commencing September 27 th , 2013: Week one, DL shall have parenting time from 9:00 a.m. every second Friday until Saturday at 5:00 p.m. and on each Wednesday from 4:00 p.m. until 7:00 p.m. with DL picking up and dropping off the children at NL’s residence. Week two, DL shall have parenting time on Friday and Sunday from 9:00 a.m. until 5:00 p.m. each day and from 4:00 p.m. until 7:00 p.m. on Wednesday with DL picking up and dropping off the children at NL’s residence.

b) Neither parent shall use, be under the influence of or allow the use of marijuana or other controlled substances in the presence of the children, KGL and ZAL.

c) Each parent shall provide a

summary of meals, nap times, medical issues and activities during parenting time by making entries in a log journal which shall be exchanged between the parties when the children are exchanged.

d) If either parent needs to arrange child care for the children for three hours or longer, the other parent must be asked and has a right of first refusal to provide the required child care.

e) Each parent shall give the other parent 24 hours notice of any change to the parenting arrangement.

f) DL shall undergo a hair follicle drug test at his own expense before October 31, 2013 and provide the test results to NL and the court before November 2013 to facilitate a review of compliance with this order. _____________________________ W. F. M. Jackson Provincial Court Judge