Exploring Judicial Appreciations of Parental Addiction in Child Custody and Access Decisions: Quebec as a Case Study
McGill University - Faculty of Law
October 19, 2009
Windsor Review of Legal and Social Issues, Forthcoming
This paper addresses how Quebec courts give effect to the “best interests of the child” principle when faced with custody or access claims advanced by substance-dependent parents. Part One contrasts the way that the medical community understands and evaluates addiction with the approach to this issue undertaken by Quebec’s family law courts. Juridical – specifically, judicial – perceptions of addiction are then explored through an analysis of Quebec family law cases that have considered this issue in the context of custody and access claims. Judicial analyses and discourse reveals an appreciation of substance dependency that differs considerably from the approach to this issue presented in the medical literature. Last, this paper questions whether legal outcomes might benefit by relying more fully on medical interpretations of addiction. It considers whether it is possible to recognize addiction’s physiological aspects in deciding custody and access claims, in particular, by acknowledging the necessity of rehabilitative treatment for this condition. Accordingly, it explores the relevance, and practical and moral implications, of treatment orders for parents coping with addiction who seek custody or contact with their children. This analysis ultimately concludes that such orders are feasible, yet would only be appropriate once a court has sufficient awareness of the accessibility of appropriate treatment resources in each case and for the particular parties concerned.
Number of Pages in PDF File: 19
Keywords: family law, custody and access, parental authority, substance abuse and dependence, drug abuse, alcoholism
Date posted: October 20, 2009 ; Last revised: December 15, 2009