A recent article published by the Canadian Family Lawyer magazine has highlighted the issues surrounding confirming drug use in family law.

In family law cases, recreational cannabis consumption has been treated similarly to social drinking since its legalization in October 2018.

However, according to Laurie Pawlitza, partner at Torkin Manes LLP in Toronto, confirming drug abuse with testing can be difficult. “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 [cannabis],” she said. Pawlitza also mentioned that most lawyers involved in custody access are coming across more issues raised about drug use, including cannabis use in recent years, pointing out that these problems “are more prevalent than they used to be.” 

Chad Johnson, a partner at McLeod Law LLP in Calgary, pointed out that in access and custody legal cases, the use and abuse of alcohol and drugs can serve as “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.”

 “It’s enshrined in all of the legislation,” said Johnson. “Not just the Divorce Act but every single province has that as the test as it relates to parenting of the children.” Moreover, he added that even recreational use of legal drugs such as cannabis can be “a disease and tear families apart,” while arbitrators and judges take seriously any allegations of potential harm to minors.

“Drug testing — it should and it will be ordered for marijuana when it’s required,” said Johnson. He also mentioned that if there are suspicions of substance abuse, monitoring and detecting it becomes crucial in family law.

However, drug use can be difficult to prove using tests. “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,” said Pawlitza.

A urine drug test is typically used to test for a variety of commonly used substances. Regular use of THC means it can be detected for approximately 21 days. In contrast, an individual who smokes cannabis occasionally typically has detectable amounts of THC in their urine for approximately eight days. There are also numerous vitamin “cleansers” which can be purchased online, or other methods used to try and “cheat” the test. Methods included trying to dilute the drug content in urine by drinking large amounts of fluids before the test, substituting urine samples by bringing a “clean” sample in, or simply planning drug use around the test schedule.

Although hair strand testing can determine average cannabis use in the previous 90 days, it also has its own specific limitations. “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 said. “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. 

Further, according to Johnson, there have been concerns over the accuracy of drug tests in Alberta as well. “I was told by other members of the family bar that the courts would no longer accept hair follicle tests,” he said, but also pointed out that this did not change his practice and he still requests the drug tests. Johnson also added that when someone is accused of recreational cannabis use, he advises them to stop consuming cannabis in the event they are, and to volunteer for drug tests, even if it may take months to demonstrate that there is no significant level of THC present in the client’s system.

In contrast to cases related to alcohol abuse, where it is possible to install a breathalyzer test in the accused person’s vehicle, the same cannot be done for cannabis use. “This is the murky part, especially when you are dealing with brand new legislation for the legalization of [cannabis]. Alcoholism, sadly, is almost easier,” said Johnson. 

However, he mentioned that he is “still absolutely going to rely on testing, still going to request testing — testing is still some of the best evidence in court.”