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We have previously discussed drug testing in the context of family law matters before the Courts, setting out that the Courts have historically taken a zero tolerance policy when it comes to drug use and parenting.

A recent case from the Court of Queen’s Bench of Alberta only reinforces the Court’s position on drug testing.

In D.L.H. v. C.A.H., [2018] A.J. No. 202, the Honourable Justice Mah considered a case involving a mother that had been previously ordered to undergo drug testing every three months.  In DLH, the parties had obtained an order in January of 2017, wherein the mother was to undertake drug testing every three months, and would have specified supervised parenting.  This continued until October of 2017 when the parties appeared in front of Justice Bast.  At that time, Justice Bast ordered that the mother would have specified unsupervised parenting time and would have to attend for another drug test on November 30, 2017.   The matter was set over for a review of the parenting to January 30, 2018.

The Order of Justice Bast did not set out continued drug testing on a three month schedule, however, the ordered drug test of November 30, 2017 did fall on a date that was 90 days after the mother’s last drug test.

Upon return to the Court on January 30, 2018 Justice Mah held that the matter of the parenting could not be dealt with in morning chambers and would have to be set over for a special hearing at a later date.  Justice Mah adjourned the matter and confirmed that the mother would have to continued with drug testing every 90 days.

The mother challenged this order in subsequent written submissions, arguing that Justice Mah misinterpreted the Order of Justice Bast, stating that there was not continuing obligation for the mother to continued with 90 day drug testing – that the Bast Order only required the November 30, 2017 drug test.

Justice Mah considered these submissions and held that it was implicit in Bast’s order that the drug testing continue every 90 days; that Order had only set the one date in November as it was anticipated that the parties would be in Court again before the next drug test would be held.

In the result, Justice Mah held that the intention of the Bast order was that drug testing continue.  This was ordered notwithstanding that the original Order from January 2017 only mandated that drug testing continue for a year.

Nonetheless, Justice Mah felt that it was in the best interests of the child to continue the drug testing of the mother until the matter could be properly reviewed at a full hearing.

This decision only confirms that the Courts do not take chances with drug use and have zero tolerance for any possible drug use in the context of parenting matters.

While legal marijuana may be on the horizon, the reality is that it remains an illegal drug and the Courts have very little flexibility in regards to drug use by parents, even of a variety that may be more socially acceptable.   The reality is that drug use of even marijuana may still be seen by the Courts as dangerous and harmful in the context of parenting, and result in a suspension or limitation on a parties parenting rights.

While many may not agree with the Court’s approach and handling of such matters, the fact is that it is the Court’s right to make such decisions.  If you are currently involved in a parenting matter, it would be best to adhere to a zero tolerance policy in respect of drug use, just as the Courts have.

Should you be facing an allegation of drug use in your parenting matter, or be concerned that your ex-partner may be using drug, Mincher Koeman Family Law Chambers can help.  Give us a call at (403) 910-3000 or email us at reception@mincherkoeman.com.

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