Court finds addiction recovery is not a ground to deprive a parent of custody

Availing social assistance reveals ability and intent to provide basic necessities: court

Court finds addiction recovery is not a ground to deprive a parent of custody
Wascana Lake, with the Saskatchewan Legislative Building in the distance - Regina, Saskatchewan

The Court of Appeal for Saskatchewan has ruled that a parent’s recovery from addiction and reliance on social assistance are not good reasons to deprive them of custody of their child.

In L.P. v Z.M, 2021 SKCA 134, a child was born from the interim relationship of the appellant and the respondent. As he was born after the relationship ended, he resided primarily with the appellant and had no contact from the respondent. However, when the child was about six years old, the Ministry of Social Services apprehended the child and his half-sibling due to the appellant’s addictions. It was during this time that the respondent reconnected with the child, and eventually, the Ministry filed an application to place the child with the respondent permanently.

The appellant sought custody over the child before the Court of Queen’s Bench, stating that she had begun to make progress regarding her addictions, having had long periods of sobriety and numerous clean drug screens despite her occasional relapses. The respondent in turn applied for interim custody and that primary residency of the child be with him in Brooks, Alberta.

The chambers judge granted the interim order of the respondent and allowed the appellant parenting time.

On appeal, the appellant sought to introduce fresh evidence – an affidavit stating that the child had received warm welcomes from teachers and friends in Saskatchewan. She further alleged that the chambers judge did not consider the best interest of their child.

As to the fresh evidence, the Court ruled that the evidence to be presented is not highly relevant or potentially decisive as to the child’s best interests. Rather, it merely supplemented in a minor way, or confirms the ample evidence that already exists, said the Court.

However, the Court set aside the interim parenting order, stating that it was not in the best interests of the child. The Court found that the chambers judge failed to consider the fact that the appellant’s situation has dramatically improved. She even had her other child return to her sole care and the Ministry had no further child protection concerns. Further, while the chambers judge found that the appellant’s reliance on social assistance and a community food program against her, the Court found that this revealed the appellant’s capacity to provide for the child’s needs when required. There was also no evidence that her ability to provide the basic necessities required by the child was impaired, said the Court.

Lastly, the Court ruled that the chambers judge failed to consider the impact of uprooting the child from his home community. “[The child] had already some temporary disruption to his life … placing him with [the respondent] in Brooks would add to that uncertainty and have a negative impact on his best interest,” said the Court.  

Thus, the Court allowed the appeal, ordered that the child reside with the appellant and granted the respondent parenting time.

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