Court-ordered alcohol monitoring during parenting time

• by Samantha Rich

Originally published in the OFLM 2024-12 edition

Overview

Seeking security for costs is an available yet under-utilized recourse within the Ontario family law framework.

Justice Abrams’s recent decision of Gibbons v. Byrne (2024 ONSC 3898) sets out the legal framework with respect to the court’s discretion to order alcohol monitoring as an incident of parenting time. The paramount consideration in this determination is the impact of the parent’s alcohol consumption on their ability to meet the child’s needs.

The party requesting an order for alcohol monitoring as an incident of parenting time bears the onus of proving that the circumstances warrant such a severe and invasive restriction on a party’s parenting time. Thus, it is important that the requesting party places sufficient and compelling evidence before the court to advocate for such an order.

The court also has broad discretion to consider alternative parenting arrangements such as therapeutic intervention and supervised parenting time until the concerns regarding a parent’s alcohol consumption have been satisfactorily addressed.

Legal framework

The court has broad discretion when determining a parenting order to consider whether a parent's abstinence from alcohol and the accompanying use of an alcohol monitoring system is appropriate. The best interests of the child outlined in section 24 of the Children's Law Reform Act (“CLRA”) are paramount in this determination (Gibbons v. Byrne, 2024 ONSC 3898 at para. 55).

Justice Finlayson in W.A.C. v. C.V.F. (2022 ONSC 2539) discussed how alcohol consumption may impair a parent's ability to meet a child's needs, and may therefore be a relevant consideration under section 24(3) of the CLRA. He stated that “past alcohol misuse may also engage the past conduct section 24(5), depending on the current circumstances of a case”. He affirmed that the “Court's job is to consider, based on evidence, whether alcohol consumption impacts a child” (W.A.C., at paras. 362 & 388).

Justice Abrams in Gibbons discussed the legal test for the court’s authority to order alcohol monitoring as an incident of parenting time:

Apart from the best interests test, there are no separately defined legal criteria that a court must consider before exercising its discretion to order alcohol monitoring as an incident of parenting time. However, the court may consider numerous factors to determine whether a party should be ordered to abstain from drinking during their parenting time and use an alcohol monitoring device to confirm their sobriety. The factors that have spoken to the appropriateness of alcohol monitoring include 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 his or her regular abuse of alcohol and lack of insight into the impact of his or her 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 (Gibbons, at para. 56).

Onus of proof

The party requesting an order for alcohol monitoring as an incident of parenting time bears the onus of proving that the circumstances warrant such a “severe and invasive” restriction on a party’s parenting time (Gibbons, at para. 58).

Therefore, the party making such a request will need to place sufficient and compelling evidence before the court to advocate that such an order is both necessary and in the child’s best interests.

Building trust

One of the purposes of an alcohol monitoring system is to build trust again between parents where one parent has misused alcohol, “… as a means of fostering parties' co-parenting relationship by building trust and providing reassurance between parties…” (Gibbons, at para. 57).

The use of an alcohol monitoring system can also be used to protect the monitored parent from any false allegations by the other parent regarding alcohol misuse (Gibbons, at para. 65).

Types of breathalyzers

The following are some of the breathalyzer’s which have received the judicial ‘stamp of approval’ when making an order for alcohol monitoring as an incident of parenting time:

  1. Soberlink (https://www.soberlink.com/) (R.A. v. D.A., 2023 ONSC 2873 at para. 12);
  2. BACtrack (https://www.bactrack.com/) (E.M.B. v. M.F.B., 2022 ONSC 4838 at Appendix A at paras. 23-25); and
  3. SCRAM system (https://www.scramsystems.com/) (S.C. v. C.C., 2022 ONSC 1763 at para. 122).

Cost of alcohol monitoring device

In most instances, the monitored parent will have to bear the full cost of the alcohol monitoring device. However, there are some instances where the court will order that both parents must contribute to the cost on some shared basis (R.A. v. D.A., 2023 ONSC 2873 at para. 10).

Justice Conlan’s decision of R.A. v. D.A. is an example of where the court ordered that the parties must split the cost of the alcohol monitoring system. His decision was largely based on the fact that there was no current evidence that the monitored parent was under the influence of alcohol when parenting:

I think that this is one case where the parents should split the cost of Soberlink. Whether the father has an alcohol problem, and to what extent, remains hotly contested and is the subject of untested evidence. This Court erred on the side of caution in making the findings and the decision that it did in January, and those findings stand, but this is not a case where there is any current independent evidence that the father is consuming alcohol or is under the influence of alcohol when he is around the children. To account for that, and to account for the fact that, in my view, the mother needs further encouragement to help foster a more normal relationship between the father and the children, which encouragement could come in the form of her contributing to the cost of Soberlink, I make the following Temporary Order (R.A. v. D.A., 2023 ONSC 2873 at para. 11). (emphasis added)

An order for therapeutic intervention

Justice Shore in her decision of Greve v. Bezerra (2024 ONSC 560) affirmed that the court has authority to make an order that a parent attend therapy or counselling to assist in resolving problems that impact a child's health, safety, and overall well-being. Importantly, she noted that a parent needs to acknowledge that they have a problem in order for therapy or counselling to be useful:

Section 28(1)(c) of the CLRA provides that the court may "make any additional order the court considers necessary and proper in the circumstances". The case law has interpreted this subsection to include jurisdiction for the court to order the parties to engage in therapy, counselling, or other services aimed at resolving problems that impact a child's health, safety and overall well-being…

I am not going to make an order that the father attend for therapy or a rehabilitation program for alcoholics. These programs are of no use unless there is an acknowledgement of an issue. However, it would be wise for the father to give this some serious consideration.” (Greve, at paras. 44-45) (emphasis added)

An order for supervised parenting time

A parent’s consumption of alcohol will not necessarily warrant the necessity of an order for supervised parenting time. The party seeking an order for supervision of parenting bears the onus of proving that such supervision is justified in the circumstances (Klymenko v. Klymenko, 2020 ONSC 5451 at para. 23).

Justice Nishikawa in Klymenko v. Klymenko (2020 ONSC 5451) held that the use of an alcohol monitoring system could be sufficient to satisfy concerns of alcohol consumption during the monitored parent’s parenting time:

The Respondent's concerns about the Applicant's behaviour are based mainly on his alcohol consumption. These concerns can be addressed by the use of an alcohol monitoring system. The Respondent has suggested, and the Applicant has consented to, the use of Soberlink. The use of a monitoring system would ensure that the Applicant is not consuming alcohol during his parenting time.”

In my view, supervised access, especially at a supervised access centre, is a significant intrusion and is not warranted if the Applicant undertakes not to consume alcohol before and during his parenting time and if a monitoring system is used. (Klymenko, at paras. 39 and 44) (own emphasis added)

AFCC Parenting Plan Guide: Parental Substance Abuse

The AFCC Parenting Plan Guide is a helpful reference to review regarding how substance abuse should be addressed in the context of parenting orders in the child’s best interests:

Mental illness or substance abuse problems may adversely affect parenting if that parent is emotionally unavailable, is unable to adequately discipline and set limits, or provide a safe environment for the children. In such cases, it may be necessary to consider alternative parenting arrangements such as therapeutic intervention, supervised parenting time, or limited parenting time until the concerns have been satisfactorily addressed. Protocols may need to be put in place for ongoing or periodic monitoring and for a resumption or gradual increase in parenting time.

To the extent that parents with a mental illness or substance abuse issue are compliant with their treatment plan, or parenting is not affected, regular parenting time can be established or resumed. In many cases, it will be beneficial to proactively plan for a relapse, with provisions to address the affected parent’s responsibility to communicate the relapse and the arrangements that will be in place to ensure the children’s safety (e.g. supervisory arrangements, switch to virtual parenting time, temporary suspension of contact) while the parent takes steps to address their situation. Parents should also consider whether their children may benefit from psycho-educational programs to assist them in understanding the issue their parent is experiencing; in many situations, this may be an important element of safety planning.

Unless a parent with mental illness or substance abuse issues acknowledges their condition and its effect on parenting, it may be necessary for the courts to be involved in making a parenting plan. It should, however, also be appreciated that even if a parent has substance abuse or mental health issues, if those are properly addressed, in the long-term children will often want and benefit from a relationship with that parent.  (AFCC Ontario Parenting Plan Guide, pg. 48) (own emphasis added)

Conclusion

The court’s discretion to order alcohol monitoring as an incident of parenting time is guided by the paramount consideration of the best interests of the child. As outlined by Justice Abrams’s decision of Gibbons v Byrne, given the severe and invasive nature of such an order, the party requesting an order for alcohol monitoring as an incident of parenting time bears the onus of proving that such an order is justified in the circumstances. Thus, such a request should not be made lightly, and sufficient evidence will need to be placed before the court.

An order for alcohol monitoring as an incident of parenting time can protect children from being negatively impacted by a parent’s alcohol consumption, as well as help rebuild trust between parents where one parent has misused alcohol.

Other options include therapeutic intervention, such as an alcohol rehabilitation program, however, there needs to be an acknowledgement of an issue in order for these programs to be useful. It is also important to note that supervised parenting time will not always be warranted depending on the circumstances of the case. The party seeking an order for supervised parenting time bears the onus of proving that such supervision is justified in the circumstances.