Drug or Alcohol Concerns and Parenting Time in Ontario

If you are worried about the other parent's drinking or drug use, you are probably asking two things. Will a court take it seriously, and what can realistically change about the schedule? The answers depend heavily on the facts of your family.

This article explains the framework Ontario courts use, the kind of information that tends to matter, and the tools a court can use to manage safety concerns. It is general information, not advice about your case.

How courts approach substance use

How a court weighs substance use depends on your situation, so it is worth confirming with a lawyer. In parenting cases, the court's primary consideration is the child's physical, emotional and psychological safety, security and well-being.

The list of best-interests factors includes the child's needs given age and stage of development, the history of care, each person's ability to care for the child, and each person's ability to communicate and cooperate. Substance use is not a factor on that list by name, but the list is not exhaustive, so a court may consider other matters while always giving priority to the child's safety.

A court also does not look at past conduct for its own sake. It disregards a person's past conduct unless it is relevant to their parenting time, decision-making responsibility or contact. How this applies to past substance use in your family is worth discussing with a lawyer.

The principle of maximum time

Courts start from the idea that a child should have as much time with each parent as is consistent with the child's best interests. The right amount depends on the individual child's circumstances and is subject to the child's safety.

In practice, this means a concern about substance use does not automatically end a parent's time. The court asks whether the concern creates a real risk for this child, and if so, what arrangement manages that risk.

What kind of evidence tends to matter

Every application must include an affidavit with your proposed plan for the child's care and upbringing and details of any earlier family or criminal proceedings. Your own account needs to be specific and tied to the child.

Information that connects the substance use to the child's care is generally more useful than general accusations. Things you might think about gathering include:

• Specific incidents, with dates, what happened and who was present
• How the child was affected, such as missed pick-ups, unsafe driving with the child or unsafe supervision
• Records of messages or emails that show the concern, kept in their original form
• Any existing orders, police involvement or child-protection involvement
• Information from people who saw events first-hand, such as a daycare, school or family member

The court has a duty to check whether restraining orders, child-protection matters or criminal matters involving a party are pending or in effect, and it may make inquiries of the parties. Be accurate and complete, because the court will be looking at the whole picture.

The court may also appoint a qualified professional to assess the child's needs and each party's ability to meet them, and it may draw inferences if a party refuses to attend. Whether an assessment or any testing is appropriate in your case is something a lawyer can help you weigh.

Conditions and safeguards a court can order

A court is not limited to all-or-nothing outcomes. Depending on the facts, tools can include:

• Supervised parenting time or contact. The court may direct supervision, but the supervisor must first consent. Ontario's guidance says the supervisor can be an agreed person, a paid professional, or staff at a Supervised Access Centre.
• Supervised exchanges, which Justice Canada lists as an option along with supervised parenting time and non-removal orders.
• Conditions in the parenting order, such as stopping a party from changing the child's residence, school or day care without consent or a court order, or from removing the child from Ontario without consent or a court order.
• Involvement of the Office of the Children's Lawyer, an independent law office within the Ministry of the Attorney General.

Whether a condition about alcohol or drugs themselves can be written into an order, and how it would be monitored, depends on the circumstances. A lawyer can tell you what is realistic for your situation.

If the situation feels urgent, and next steps

Normally no motion may be heard before a case conference on the substantive issues, but there is an exception where the court finds urgency or hardship. A motion may be made without notice where there is an immediate danger to the health or safety of a child or the party, but the delay of serving notice must also probably have serious consequences. Ontario's guidance says to call the police right away if you think your child is in danger.

If it is not an emergency, a practical approach is to keep a factual record, avoid involving the child in the conflict, and get legal advice before you change the schedule on your own. Parties must protect the child from conflict arising from the case as far as they are able. Ignoring an existing order can have consequences, as Ontario's guidance says you can be fined or jailed for not following a court order.

• Write down specific incidents while they are fresh
• Keep any existing order or agreement handy
• Do not withhold the child unilaterally without advice
• Speak with a family lawyer about the evidence and the safeguards that fit your facts

Frequently asked questions