In a recent case out of the Court of Queen’s Bench of Alberta, an Order was granted prohibiting the father from consuming alcohol of any quantities during his parenting time.
This is not an uncommon provision for the Court to grant; in fact it often arises when there are concerns regarding any parent’s alcohol consumption. The Court will often err on the side of caution when it comes to alcohol use around children, often instituting provisions that require one or both parents to abstain from alcohol not only during their parenting time, but also during the 24 hours preceding their parenting time.
However, in the case of BJK v. AVK, 2018 ABQB 642, both parents already had a provision from a previous order, requiring them to limit their alcohol consumption to no more than two drink in any 24 hour period during which the children were in their care. However, upon the father bringing an application for permission to take his two children to British Columbia for a family event. In response, the mother filed a cross-application requesting an order that the father be prohibited from consuming alcohol of any amount while the children were in his care.
In support of her cross-application, the mother cited recent involvement that the family had with Child and Family Services (“CFS”) and sought that disclosure from CFS be provided to the Court.
As the parents had conflicting evidence in their affidavits, particularly in respect of the father’s alleged alcohol use, the disclosure from CFS was ordered to be released by the Court. However, upon release, the documents received from CFS disclosed that CFS was not able to draw any conclusions as to the father’s level of drinking, particularly during a series of events that cause CFS to become involved. However, CFS did interview the children and it was reported that the two children indicated that (1) they do not like it when the father consumes alcohol; and (2) they are afraid when the father drinks too much.
The Court was clear that it was unable to draw any conclusions as to whether the father actually consumed alcohol in excess of the two drink per day requirement in the prior Order, further the Court was clear that the childrens’ view of “too much” alcohol did not imply in excess of two drinks per day. In fact, the Court specifically set out that it was not making any finding as to whether the father actually consumed more than two drinks per day.
However, notwithstanding the Court failing to make any finding about the father’s drinking, the Court held that:
On this basis, the Court ultimately granted the mother’s order prohibiting the father from consuming any alcohol of any amounts during his parenting time.
It is notable that:
Notwithstanding the above and the fact that both the Court and CFS were unable to conclude that the father actually did drink in excess of two drinks a day, the Court did not turn its mind to whether or not there was an undue influence on the children by the mother. Rather, the Court simply defaulted to a zero-tolerance result.
This is a noteworthy case given the considerable lack of any evidence as to the father’s actual drinking, and that the Court simply defaulted to reliance upon the views and thoughts of a 9 year old and a 12 year old. The takeaway from this case would appear to be that the Courts will not engage in a full consideration of whether excessive alcohol consumption is ongoing, or what might be considered “excessive” in that regard, but will instead take no chances and resort to a zero tolerance model to protect the interests of children.
At Mincher Koeman we have a wealth of experience in helping clients with the parenting matters. We spend time working with our clients to fully understand the dynamics of the family relationship and we know how important it is to protect and preserve children’s interests and their relationships with their parents.
If you need legal advice on a parenting issue contact Mincher Koeman at 403 910 3000
707 7 Ave SW #1300,
Calgary, AB T2P 3H6
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