Substance abuse is one of the most complex and emotionally charged issues in family law. When raised in parenting disputes, it forces courts to weigh competing concerns: a parent’s right to maintain a meaningful relationship with their child, and the need to ensure the child’s safety and well-being.

While each case turns on its own facts, a review of Ontario jurisprudence reveals consistent principles guiding how courts approach allegations of substance misuse.

The Governing Principle: Best Interests of the Child

Under Ontario’s family law framework, the best interests of the child remain the paramount consideration. Substance abuse, in and of itself, does not automatically disqualify a parent from exercising parenting time. Rather, the court assesses:

  • The severity and frequency of the substance use
  • Whether the use impacts parenting capacity
  • Evidence of rehabilitation or ongoing treatment
  • The level of risk posed to the child

Courts are particularly concerned with patterns of behaviour that impair judgment, create instability, or expose the child to unsafe environments.

When Both Parents Have a History of Substance Use

A common and often difficult scenario arises where both parents have struggled with substance abuse. In these cases, courts are careful not to engage in a comparative “who is worse” analysis. Instead, they focus on:

  • Which parent is currently more stable and child-focused
  • Who demonstrates greater insight into their substance use
  • Evidence of sustained recovery efforts
  • Each parent’s ability to prioritize the child’s needs over their own

This approach prevents the use of “whataboutism” as a defence—where one parent attempts to deflect scrutiny by pointing to the other parent’s similar conduct.

Case Insight: Shankman v Dennison

In Shankman v Dennison, the court addressed allegations of substance abuse within a broader parenting dispute. The decision underscores a key principle: historical substance use is less important than present-day parenting capacity and risk to the child.

The court emphasized that:

Past substance abuse does not permanently bar a parent from increased parenting time

  • The focus must remain on current behaviour and evidence of change
  • Courts will look for objective indicators of stability, such as negative drug tests, participation in treatment programs, and consistent parenting conduct

Importantly, the case reflects judicial reluctance to punish parents for past struggles where there is credible evidence of rehabilitation.

Evidentiary Considerations

Substance abuse allegations must be supported by clear and reliable evidence. Courts are cautious about relying on unsubstantiated claims, particularly in high-conflict cases.

Common forms of evidence include:

  • Medical or treatment records
  • Drug and alcohol testing results
  • Police or child protection involvement
  • Third-party observations (e.g., teachers, relatives)

Where concerns are substantiated but not severe enough to eliminate parenting time, courts may impose protective measures, such as:

  • Supervised parenting time
  • Abstinence conditions
  • Ongoing testing requirements

The Role of Proportionality

A key theme across the case law is proportionality. Courts aim to craft parenting arrangements that address risk without unnecessarily severing the parent-child relationship.

This often results in graduated parenting plans, where a parent can expand their parenting time as they demonstrate sustained stability and compliance with conditions.

Practical Takeaways

  • Focus on the present: Courts are primarily concerned with current functioning, not past mistakes.
  • Document recovery efforts: Evidence of treatment, sobriety, and insight is critical.
  • Avoid comparative arguments: Highlighting the other parent’s shortcomings rarely advances your case unless tied directly to the child’s best interests.
  • Propose workable safeguards: Demonstrating a willingness to accept conditions can strengthen credibility.

Conclusion

Substance abuse cases require a careful, evidence-driven approach. Ontario courts strive to balance compassion for parents in recovery with a firm commitment to child safety. As cases like Shankman v Dennison illustrate, the legal system does not demand perfection, but it does require accountability, stability, and a clear commitment to the child’s well-being.

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