Substance Use and Parenting Time in Ontario: Testing and Conditions

If you are worried about the other parent's drinking or drug use, your main concern is probably whether your child is safe in their care. Or you may be the parent facing the concern, wondering what a court will do with your history. Either way, the focus is on the child, not on punishing a parent.

This article explains in general terms what evidence tends to matter and what kinds of conditions an Ontario court may consider. It does not give advice about your case. A lawyer can tell you how the rules apply to your facts.

What the court asks

Under the Divorce Act, the court considers only the child's best interests and gives primary consideration to the child's physical, emotional and psychological safety, security and well-being. Past conduct, such as a mental health history or past substance use, is not considered unless it is relevant to the person's exercise of parenting time, decision-making responsibility or contact.

So the question is rarely whether someone has ever used alcohol or drugs. It is whether substance use affects the person's ability to care for the child. The factors include the history of care and each person's ability and willingness to care for the child. Unmarried parents, or parents who are not divorcing, proceed under Ontario's Children's Law Reform Act instead.

Evidence that tends to matter

Concerns are easier for a judge to assess when they are specific and tied to the child. The factors the court weighs include the history of care and the child's needs given their age and stage of development. In an affidavit, which must be sworn or affirmed, describe what you have seen and what effect it had on the child.

• Dates and descriptions of specific incidents, such as missed pickups or unsafe situations.
• Who has handled the child's daily care, school and medical needs.
• Records that relate to the child's safety, such as police or child-protection paperwork, which may count as relevant civil or criminal proceedings.
• Evidence of treatment or steps taken to address the issue, which can matter to both parents' positions.

If the child's views are important, they can be considered with due weight according to age and maturity. A judge can order the Office of the Children's Lawyer to provide a voice of the child report, typically for children over seven, due within 30 days after a clinician is assigned, while a full Children's Lawyer Report takes about 90 to 120 days. A party has 30 days after receiving a clinician's report to serve and file a statement disputing it.

Conditions a court may consider

A parenting order may allocate parenting time and decision-making responsibility, set communication requirements, and provide for any other matter the court considers appropriate. It may impose any terms, conditions or restrictions the court considers appropriate. These powers are broad, so what is ordered depends on the facts.

Conditions such as drug or alcohol testing or abstaining from substances before and during parenting time are not set out as rights in any statute. Courts order them, if at all, case by case under their general power to set terms. Treat them as options a judge may consider, not as something either parent is entitled to.

Supervision and planning

Justice Canada's Parenting Plan Checklist tells parents dealing with mental health or substance use issues to consider alternative arrangements, including supervised parenting time. Supervision may be by a friend or relative both parents agree on, a paid professional, or trained staff at a Supervised Access Centre. Ontario's Supervised Access Program offers on-site and virtual options. Availability and waitlists vary by region.

The checklist also says plans should be flexible enough to be realistic and allow for unforeseen events. Parents can include how they will communicate, whether by phone, e-mail, text or video chat. A plan can be included in a separation agreement or a court order, since an informal plan can be hard to enforce. If a parenting order is not followed without good reason, the court can take action, including a fine or jail.

Changing an order later and next steps

Before varying a parenting order, the court must be satisfied there has been a change in the circumstances of the child since the order was made. On a variation application, the court cannot consider any conduct that could not have been considered when the original order was made. If you both agree, you can sign Form 15C and file it with Form 14B and a typed draft order. If the other party does not agree, you file Form 15: Motion to Change.

• Keep a dated record of specific incidents and their effect on your child.
• Collect documents that relate to your child's safety and care.
• Think about what conditions would actually make time safe, such as supervision.
• Consider whether a written plan or consent order would help.
• If safety is at immediate risk, ask a lawyer about urgent steps.
• Speak with a lawyer before filing, so your evidence stays focused on the child.

Frequently asked questions