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In high conflict parenting cases, it is not uncommon that parties will accuse each other of various different types of harmful behaviour. There are times when these accusations are founded on actual instances of harmful behaviour. However, such accusations are sometimes made by parents solely for the alternative purpose casting the other parent as a danger to the children, and to make themselves appear as the “better parent” in the hope of obtaining primary parenting of the children.

One of common accusations of harmful behaviour is alleging drug or alcohol abuse by the other parent. While there may be no evidence tendered in support of such an accusation, other than the word of the parent making the accusation, the reality is that drug and alcohol use is often easy to conceal outside of the home environment. Because of the potential for the significant and serious danger that comes with drug and alcohol abuse, and because any matters under the Family Law Act, or Divorce Act that involve children require the Court to only consider the best interests of the child, the Courts take such allegations very seriously.

Therefore, if the Court feels that there is a chance the allegations may be true, they may require a parent to undergo a drug test to ensure the safety of the child. The drug test can either be done by way of a urine sample, which is limited in how far back it scan detect drug use, or by way of a hair follicle test, which can show drug use for the past 3 months.

Many parties find this a gross violation of their privacy: that based on one person’s allegations, without any further proof, someone can be subjected to a potentially prejudicial test. However, if a parent refuses to undergo a drug test, the court may view this refusal to take the test negatively and choose to suspend or restrict that person’s parenting until a clean drug test is provided.

Some parents and lawyer have viewed this enforced drug testing as an intrusion on their privacy in the absence of further corroborative evidence, and as compelling a party to provide potentially prejudicial or incriminating evidence.

As a result, many parents ask “Why is the Court permitted to Order this?”

Going back to the best interest of the child test, it is because the Court is erring on the side of caution to protect children by requiring a drug test. If a parent does not use drugs there should be no issue with providing a drug test demonstrating that. Whereas if the test does come back positive for drug use, the Court is obligated to take steps to ensure that any children of that parent are protected.

However, the difficulty does arise in the sense that requiring a parent to undertake drug testing does come at the financial expense of the test itself, and may also require a parent to take time off of work, thereby giving up income. Further, the Courts have often, out of an abundance of caution, restricted parenting time of the parent who is alleged to have used drugs until such time as the results of the test come back. In the event that the test returns as negative for drug use, because of improper or false allegations, the damage has already been done, both financially, and by interfering with the child(ren)’s access to the parent accused of using drugs.

A further concern has recently arisen with the recent changes regarding medical marijuana. Many parents are now in possession of a medical marijuana card and use marijuana for various medical ailments. There is, however, still an overarching stigma against marijuana use, even for medically therapeutic purposes, that persists in society and even amongst some of the Judiciary. Therefore, it may even be viewed negatively if a parent uses medical marijuana which subsequently shows up on a drug test.

Some of this uncertainty arises from the fact that, having been an illegal drug for so long, the there is a lot of uncertainty amongst society as to the positive and negative effects of its use. For example, in a 2015 case of the Alberta Court of Queen’s Bench, Platt v Hutzal, 2015 ABQB 795, the mother had a prescription for, and used, medical marijuana, but notwithstanding a prescription from her doctor, she was still required to have supervised parenting until more information was provided regarding her daily level of impairment and her ability to parent. It might be expected that with full legalization to occur, and the use of marijuana to become more accepted in society for both medical and recreational use, the Courts and society will develop a greater insight into marijuana use and how that may relate to considerations regarding parenting matters before the Court.

Until then, however, parties in family law matters involving children should be aware of the fact that if there are any allegations involving drug use, they may be subjected to a drug test. This includes medical marijuana, as well as cases where parties used drugs together recreationally. Once the relationship goes sour, even a single shared joint might be used against one or both of the parties.

If you need legal advice or representation with any family law matter, please contact Mincher Koeman LLP at 403 910 3000 or reception@mincherkoeman.com.

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