Drug use – including cannabis – increasingly prevalent but hard to prove in family law, say lawyers

Although recreational marijuana has been generally treated like social drinking in family law cases since legalization, there is an area where the equating of cannabis to alcohol comes up short. 

“If you think there may be some substance abuse issues, it’s much more difficult than you might think to confirm that abuse with drug testing if you have a savvy user,” says Laurie Pawlitza, a partner at Torkin Manes LLP in Toronto. “The devices are better when it comes to alcohol and the nature of drug testing means it can be difficult to catch someone when it comes to pot.” 

In custody and access cases, “the reckless use or abuse of drugs or alcohol is still grounds for one parent to seek and have primary care of a child, with supervised access and testing, whether it’s a legal or illegal substance,” says Chad Johnson, a partner at McLeod Law LLP in Calgary. 

Pawlitza says she thinks most lawyers who do custody access work would say they are seeing more issues raised about drug use, including pot, than they were five years ago, and she has the sense that these issues “are more prevalent than they used to be.” 

But recreational marijuana use and social drinking are both legal and generally socially acceptable — as long as it doesn’t impact the parenting and safety of the child, which is the key test in family law. 

“It’s enshrined in all of the legislation,” Johnson says. “Not just the Divorce Act but every single province has that as the test as it relates to parenting of the children.” 

There may be some novel leniency to a recreational user of a now-legal substance that does not impact their parenting, but Johnson says any abuse of legal drugs — or even recreational use — can still be a disease and tear families apart. Judges and arbitrators will take allegations of any harm to the children seriously.   

“Drug testing — it should and it will be ordered for marijuana when it’s required,” he adds. 

If there is a suspicion that somebody is substance abusing, the question becomes how can it be monitored in a meaningful way, Pawlitza says.  

“The answer is it’s difficult. If family lawyers have a substance abuse case that is not alcohol-related, there can be real difficulties in trying to get to the bottom of whether or not you’re getting accurate testing.” 

If testing is ordered, a urine test that looks for an array of commonly used substances is a standard option. With urine tests, the regular use of THC means it can be detected for approximately 21 days. Someone who smokes cannabis occasionally may have detectible amounts of THC for around eight days.  

Although many people think a urine test is a solution, “it turns out it’s pretty easy to beat,” Pawlitza says, particularly if it’s not truly random testing, which is difficult to achieve because the lab’s sample collector will still need to know where the person is in order to get the urine sample, so there will likely be at least some notice to the user.  

She says she’s had “a real learning experience” with these issues in a recent matter, where a spouse was being drug tested for more than a year in a custody case. 

“As time went on, we realized the testing ordered wasn’t really random at all, and over and above that it turns out a user can alter a urine test. All it takes is for a user to do a quick Google [search] of ‘how to beat a urine test.’” 

Chugging a few litres of fluid before the test can reduce the amount of the substance detectible in the sample, postponing the visit for a certain amount of time so the amount is below the threshold, testing themselves first with home testing kits usually consisting of an oral swab, planning usage around regularly scheduled tests and even swapping out urine are all ways people can and have cheated the system. 

Hair follicle testing, which needs 1.5 inches of hair to determine average use in the last 90 days, is another common method of drug testing, but it also has limitations and ways around detection. For example, it can’t tell you when they last used — last Thursday, while with the kids? Last night? Two weeks ago? 

Pawlitza says the hair follicle test is the better answer, but “people, if push comes to shove, can shave their heads.” Follicles from any body hair — chest or armpit, for example — can be used, but they may say they’ve just been lasered. If the lab doesn’t collect the hair sample but the user sends hair into the lab themselves, “you have no clue whose hair it is — you need a provable chain of custody.” 

In one of her recent cases, all these issues came up and the director of the lab explained the science behind the tricks. Through trial and error, Pawlitza eventually determined the hair follicle test was the best bet since the urine test was too easily manipulated. 

“If a user is thoughtful and clever, it’s actually not that difficult to play the ‘testing game’ — and it’s hard to catch somebody,” she says, adding that you can bring some of the issues in front of the judge or arbitrator through expert evidence. “It’s interesting from a legal perspective, but it’s frightening from a client’s perspective.” 

Pawlitza says the options for testing are far from perfect — “there’s no foolproof, go-to solution for how you test for substance abuse in these circumstances if you have a user who is determined to beat the test. 

“The best solution is to have an order with very specific language for collecting the samples and to make sure the lab follows it to the letter,” she says. 

Johnson says there are the same concerns over the accuracy of the tests in Alberta. 

“I was told by other members of the family bar that the courts would no longer accept hair follicle tests,” he says, but he adds that it didn’t change his practice in that he still requests the tests. 

If a client has been accused even of overuse recreationally of marijuana, he will advise them to stop using if they are and volunteer to start taking tests — even though it may take a few months for any significant level of THC not to show up. 

Johnson once had a client where, because “we wanted to prove to the father that although she definitely suffered from alcoholism . . . she went to rehabilitation, was clean and sober, so as part of the arrangement to avoid any sort of formal monthly testing or supervised access or things of that nature, we volunteered to put a breathalyzer in her car.” 

You can’t do something like that with marijuana, so “it’s unique,” he says. 

“This is the murky part, especially when you are dealing with brand new legislation for the legalization of marijuana. Alcoholism, sadly, is almost easier.”  

Despite the limitations, Johnson says, he’s “still absolutely going to rely on testing, still going to request testing — testing is still some of the best evidence in court,” especially for someone to prove that they don’t have an alleged problem.  

“The inherent danger in any system is how people are cheating it, but it doesn’t change the fact that evidence through testing is still what’s critical in court.” 

Cannabis use by province, Q4 2019, StatsCan 

N.L. 25.9% 

P.E.I. 20.9% 

N.S. 27.5% 

N.B. 18.4% 

Que. 14.3% 

Ont. 16.3% 

Man. 17.3% 

Sask. 14.4% 

Alta. 16.7% 

B.C. 19% 

Families in Canada

1.3M (6%) are separated or divorced from a marriage 

364K (28%) of those were in marriages for less than 7 years 

195K (15%) of those were in marriages for 7-9 years 

741K (57%) of those were in marriages for 10 years or more

1.6M (8%), are separated from a common-law relationship 

1.184M (74%) of those were common-law relationships of less than 7 years 

176K (11%) of those were in common-law relationships for 7-9 years  

 176K (15%) of those were in common-law relationships for 10 years or more