Courts will primarily consider a child’s physical, emotional, and psychological safety, security, and well-being when deciding parenting issues. Although alcohol and substance abuse may not explicitly appear in family law legislation, courts can consider how a parent’s alcohol use can impact a child’s well-being. There will need to be evidence that a parent has been struggling with alcohol use, which may negatively impact a child, for courts to intervene and address alcohol use in a parenting order. 

Alcohol Abuse Can Impact Parenting Time 

When making a parenting order, courts will only consider the child’s best interests. In W.A.C. v. C.V.F., the judge accepted that “alcohol use may impair a parent’s ability to meet a child’s needs” and therefore was a relevant consideration under section 24(3) of the Children’s Law Reform Act. That section sets out the factors courts consider in a child’s circumstances.  Additionally, the judge indicated that a party’s past alcohol misuse could also be relevant.

A parent’s alcohol consumption that may impact a child is a cause for concern. For example, in E.M.B. v. M.F.B., the judge accepted that the father did not consume alcohol before or during his parenting time. However, the judge was concerned that alcohol abuse could have an impact on the children as his parenting time expanded. In this instance, the judge placed weight on the fact that the father minimized the concern around his alcohol use, and that led the judge to conclude that it would be in the children’s best interests for the father to address his “social and emotional dependence on alcohol” by participating in an alcohol abuse program. 

Parent Requesting Protective Measures Due to Substance Abuse Bears the Onus of Proof

The party alleging that a parent has an alcohol dependency problem has the onus of establishing that there is substance to the allegation, which would warrant putting measures in place. Courts have also recognized that alcohol monitoring can be used to foster a co-parenting relationship. In Diamond v. Clark, the judge ordered that the father use an alcohol monitoring device to build trust between the parties and provide reassurance. But there must be an evidentiary basis that justifies alcohol monitoring.

In Atkinson v. Tempest, the mother had safety concerns about the father driving the child while intoxicated. She claimed that the father should not resist submitting to a breathalyzer if he had no issues with alcohol dependence. She further alleged that the father’s denials of having an alcohol dependence issue were “symptomatic of the disease” he suffered from. The judge did not accept that argument. There was no evidence that suggested the father had an alcohol addiction, disease, or any alcohol disorder. Nor had he been diagnosed with any alcohol issue or had alcohol related criminal charges. It was also noteworthy that the mother had been content for the father to transport the child for the seven years the parties had been separated. The mother wanted the father to undertake not to drink when he would be required to drive the child to her home, and the father agreed to that. The judge felt that the father’s undertaking not to consume alcohol within 12 hours of any parenting exchange could be included in a court order and should alleviate the mother’s concerns that the father might drive while intoxicated. 

Evidence Must Justify Alcohol Monitoring

In Gibbons v. Byrne, the mother wished to make the father’s parenting time conditional on his sobriety during his parenting time, and she also sought a requirement that he use an alcohol monitoring device for one year. Justice Abrams first considered the legal framework and noted that when determining a child’s best interests under section 24 of the Children’s Law Reform Act, “the court has broad discretion to consider whether a parent’s abstinence from alcohol and the accompanying use of an alcohol monitoring system are appropriate”. Yet, the judge recognized that there are no separate legal criteria that a court needs to consider before ordering alcohol monitoring as an incident of parenting time.

Nevertheless, courts can consider a range of factors when weighing whether to make an order for a party to abstain from consuming alcohol during their parenting time or be required to use an alcohol monitoring device to confirm their sobriety. Justice Abrams identified several factors that included, but are not limited to: 

1. A party’s previous use of a breathalyzer device;
2. A party’s admission to drinking and driving under the influence of alcohol;
3. A party’s predisposition to anger when drinking;
4. A party’s minimization of their regular abuse of alcohol and lack of insight into the impact of their drinking on the other parent and/or the children;
5. The risk posed by a party’s drinking to the children’s emotional and psychological safety;
6. The other party’s consistent expression of concern over a parent’s alcohol consumption, including during prior negotiations and domestic contracts; and
7. Third party evidence, such as Children’s Aid Society records, detailing the other party’s or child’s concerns about a party’s drinking.

The father claimed that the mother’s allegations did not come close to meeting the onus required to justify imposing invasive restrictions on his parenting time, especially since this would be a final order and would come after almost five years of equal parenting time. The father also argued that there was no evidence that suggested that he suffered from any alcohol abuse disorder or that the consumption of alcohol negatively impacted his ability to provide for the children’s needs. But on this point, the judge disagreed. 

Parent Lacked Insight Into the Negative Impact of Their Alcohol Consumption 

The father was previously found in contempt for breaching a court order that required him to refrain from consuming alcohol during his parenting time. As a sanction, a parenting assessor was appointed to report to the court any concerns that were identified arising from the father’s consumption of alcohol and the impact of his drinking on his ability to care for the children.

The assessor testified that she received conflicting evidence from both the father and his family members on whether he consumed alcohol during his parenting time and whether he would drive after consuming alcohol.  The assessor was particularly concerned that there were signs the children were monitoring the father’s alcohol consumption and explained that this could create a dysfunctional parent-child relationship. 

The assessor recommended that the father’s parenting time be conditional on the father’s sobriety and use of an alcohol monitoring device for one year. The assessor explained that the one-year duration would demonstrate if the father could refrain from alcohol for a prolonged period of time. And multiple testing times proceeding and during his parenting time would ensure his sobriety throughout the day. The assessor also testified that the monitoring device would build trust and “remove the children from the equation”. 

Looking at all the evidence, the judge did identify concerns with the father’s drinking. The father admitted to drinking and driving on several occasions. And the judge felt it was revealing that the father did not see that as a problem because he claimed that he would never drink and drive while he had the children in the car. For Justice Abrams, the evidence indicated the father had “little insight into the negative aspects that his alcohol consumption has on the children”. Moreover, his refusal to abstain from alcohol during his parenting time, even when under a court order to do so, was a significant concern. For these reasons, the judge agreed with the assessor’s recommendation that a proactive enforcement mechanism was required to ensure that he abstained from drinking for twelve hours before and during his parenting time. 

Alcohol Use is a Relevant Consideration Under Family Law Legislation  

A parent’s alcohol abuse can complicate resolving parenting issues. There is a range of court orders that can be made where there is evidence that a parent’s alcohol use might impact a child’s wellbeing. In appropriate cases, this might include requiring a parent to refrain from consuming alcohol before their parenting time, and in some instances, ongoing testing for alcohol consumption may be justified. 

Contact NULaw in Toronto for Trusted Family Law Representation in Parenting Disputes

Concerned about how a parent’s alcohol use may affect parenting time or decision-making? The family law team at NULaw advises parents on evidence, court-ordered safeguards, and parenting orders that prioritize a child’s best interests. Contact us online or call 416-481-5604 for confidential, strategic guidance.