In another example of the kinds of difficult questions that Family Law judges have to grapple with, a recent Ontario case involved a father of a child who wanted custody, despite having been arrested in a methamphetamine sting, and despite what the court called his “obvious pride” at being good at the “craft” of running a marijuana-growing operation in his basement.
In Sukan v. Sukan, the court had to contend with numerous issues between the former couple, but key among them was custody of the 7-year old girl they had together. Since separation, the couple had shared custody evenly and somewhat amicably but, as the court described it:
“Regardless of how it began, this pattern of equal sharing changed quite substantially on April 14, 2011 when [the mother] learned from the front page of the Hamilton Spectator that both [the father] and his current partner were arrested in ‘one of the largest meth busts in the province’s history’.”
The father was detained in jail for 21 days before being released on bail; co-operation between him and the mother became strained after that point, and litigation increased significantly. The daughter had lived with the mother for the two years since the father’s arrest.
At trial the father, after initially asking for joint custody of the girl, changed his position mid-way through and asked for sole custody instead, claiming it was partly based “on his love for his daughter.” The court refused, finding that while the father’s plan for her care may have seemed logically reasonable on paper, it would change the status quo and was not a workable solution in terms of giving the daughter the stability that she needed.
But the interesting part of the court’s reasoning was its careful consideration of the father’s criminal history of drug-related charges. (It should be added that the both mother and father were charged with running a grow-operation in 2010; the charges against the mother were stayed, and the father – who was found guilty – received a conditional sentence. The court concluded that while the mother could not have been oblivious to the grow operation, the father was the “operating mind of this project”).
In assessing the father’s lifestyle for custody purposes, the court found he is “clearly quite proud of his substantial expertise” relating to drug operations. It wrote:
“As indicated, Mr. Sukan was proud to show off the knowledge of “his craft”. He was happy to explain the financial details of ‘12 light, 1,000 watt, hanging light grow operation’ for instance. He testified that 12 lights could yield one and half pounds per light ‘if you are good at your craft’. Such a yield would result in nine pounds per month times $2,000 per pound or $18,000 less about $2,000 expenses per month.
Mr. Sukan flies under the radar when it comes to income and employment. In the face of his criminal record and his own evidence about his skill set in the production of illicit drugs, I have concern.”
Having found that the husband’s sources of income and reporting methods to both Revenue Canada and the court were sketchy, this reflected poorly on his credibility and – by extension – his claim that he had “given up his ‘craft’ of which he so proudly boasts”. In contrast, the mother’s home was more stable and consistent for the child.
She was granted sole custody, although the father was given access every other weekend, and one mid-week overnight visit.
For the full text of the decision, see:
Sukan v. Sukan, 2013 ONSC 4468 http://canlii.ca/t/fzgt4
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