Court finds it should not ‘unduly criticize’ parenting capacity of man in recovery from addiction

If a parent is undergoing treatment for a drug addiction, the court should not unduly criticize their parenting capacity, but should still consider the best interests of the child.

In Hemens v. Hemens, 2020 ONSC 5352, a husband and wife separated amid the COVID-19 crisis and took to court to raise the issue of the temporary parenting of their three-year-old child.

Following the declaration of the pandemic on Mar. 11 and the subsequent closure of the child’s day care, the father, unemployed since July 2019 for health-related reasons, tried to care for the child full time but experienced difficulties. In June, the parents separated. The mother took the child to the residence of the child’s paternal grandparents in Gravenhurst, Ont., at which point the father contacted the police to seek the issuance of an amber alert.

The Ontario Superior Court of Justice noted that the father had previously pled guilty to a criminal charge relating to a 2012 incident during which he, working as a pharmacist at a clinic, falsified a prescription for a narcotic to obtain the drug for himself. The College of Pharmacists reprimanded and suspended him, and he has not sought re-admission.

The court then considered the evidence of three mental health professionals who had cared for the father. A psychiatrist said that, while the father had received diagnoses of opiate use disorder and attention deficit disorder, he has abstained from substance misuse since September 2019, has sought out different modes of treatment and has continuously attended meetings. The two other participant experts also spoke positively of the father’s progress, stating that he regularly undergoes drug screens, complies with treatment recommendations and shows signs that he will remain in sustained remission.

“In a case where the father acknowledges his mental health challenges and where his three key mental health professionals express optimism about his continued recovery, the court must take care not to be unduly critical of the parenting capacity of the parent so as to retard recovery or contribute to remission,” wrote Justice Frances Kiteley on behalf of the court. “However, the paramount concern is the best interests of the child.”

The mother presented as evidence text messages from the time that the father was attempting to care for the child following the closure of the daycare. These messages showed that the father experienced challenges in feeding and dressing the child, referred to the child using “disparaging and disrespectful terms” and needed help from the mother and from his parents in Gravenhurst, the court said.

The court also noted that the father’s health issues, which were diagnosed by his psychiatrist and which the father himself called a “severe disability,” prevented him from working. “If he is not well enough to obtain and maintain employment, I infer that it is reasonable to conclude that he is not well enough to look after his three year old child for a prolonged period of time without assistance,” wrote Justice Kiteley.

The court therefore issued a temporary order giving the mother primary care of the child. On alternate weeks, the father has temporary parenting time during the weekends and during an additional evening. This arrangement, which was proposed by the mother, would give the father short but quality time with the child, while also allowing for the continued monitoring of the father’s progress and emotional stability, the court said.