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Drug Testing in Parenting / Custody Disputes


Let’s say you and your ex are the parents of two young children, ages 8 and 6.  You broke up a couple of years ago but you and your ex have gotten along reasonably well.  You agreed that the kids will spend one week with you and then one week at your ex’s.  You haven’t gone to court or written up a parenting agreement because things have gone smoothly.    

However, the kids recently told you that your ex is behaving erratically when they are with him.  They told you that he is “drinking a lot” and seems tired and angry.  They also say that he is staying up late at night and sleeping in each morning, often failing to get them to school on time or pick them up from their sporting activities.  Finally, the kids say they’ve seen pills scattered about his house.  They seem unhappy and anxious when they come home after spending time there.     

You are concerned that your ex has slipped back into substance abuse problems.  He struggled with this during your relationship but had gotten sober over the last few years.

What can you do?

One strategy in cases like this is to ask the other parent to undergo a drug or alcohol test or apply to court for the drug or alcohol test.  

There are various ways of testing for drugs or alcohol.  Breathalyzer testing is most commonly used to test for impairment from alcohol in the blood stream.  Alcohol remains in the blood stream for about 24 hours following a final drink (https://www.healthline.com/health/how-long-does-alcohol-stay-in-your-system).  

The use of drugs (marijuana, methamphetamines, opioids, etc.) can be detected by urinalysis screening, which can find the presence of drug use from 1 to 7 days following last use.  Typically marijuana (THC) last longer in urine than other drugs (https://americanaddictioncenters.org/how-long-drugs-system).

Hair follicle testing is the other common method of testing for the use of alcohol or drugs.  An inch of hair can, approximately, reveal the presence of alcohol and various types of drugs in a person’s system for or up to 90 days from last use. (https://www.unodc.org/documents/scientific/ST_NAR_30_Rev.3_Hair_Sweat_and_Oral_Fluid.pdf).

Of course, the question then becomes when is it appropriate to ask the other parent to undergo a test?  When will a court order the other parent to do a test?

These issues were recently addressed in an August 20, 2020 decision of the Ontario Superior Court of justice: Kazanzhy v. Yozef, 2020 ONSC 4985 (https://www.canlii.org/en/on/onsc/doc/2020/2020onsc4985/2020onsc4985.pdf).  

In this case, the parents had three young children ranging in age from 8 to 3.  The father had regular parenting time with the oldest two children as well as specified day time access with the youngest child.  The mother began to suspect the father of using drugs during the onset of the COVID-19 pandemic due to financial stress on his business.  The 8 year old child reported the following during recent visits with the father:

•    Significant mood swings, including temper tantrums, yelling, etc.
•    The father was smoking “weed” in the garage while the children played on the driveway.  
•    He thought his father was snorting cocaine based on a video he found online about the effects of using cocaine.  
•    The children exhibited physical anxiety symptoms because of the father’s behaviour, such as a “nervous tick” reactions and obsessive scratching.

The father also spoke aggressively during a video chat call with the children, which included an outburst that the children should not believe anyone who told them he was an addict.

The father, who did not hire a lawyer, decided to “prove” that he was not using drugs by doing a “rapid test” urine screen on the eve of the court date.  It was negative for all drugs and alcohol.  However, this particular urine test only screened for substances for a period of 36 hours prior to testing.  

The court was not satisfied that the “rapid test” was enough to prove the father’s non use of drugs or alcohol during the prior weeks and months (when the father’s strange behaviour started).  Moreover, the court found that the father had not provided any reasonable explanation for his strange behaviour.  Accordingly, the court ordered, among other things, that the father’s parenting time be supervised pending the results of both a subsequent urine test and a hair follicle test.  Moreover, the father was ordered not to transport the children pending the results of those tests.  

In ordering the drug tests, the court in Kazanzhy had to weigh the evidence of the mother against that of the father.  It had to determine whether the evidence of the mother, in which she alleged that the children had reported aggressive and strange behaviour by the father, was sufficient to require the father to undergo drug testing to ensure the children would be safe in his care.  The court erred on the side of caution and, of course, ordered the father to do the testing.  

In sum, allegations of unusual or violent behaviour may be enough to have a parent do a drug test.  

If you have questions about a complex parenting matter, or any other family law issue, our experienced team of family law lawyers are available to help you assess your specific situation and provide trusted advice on how to best move forward.  
 

        
     

 

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