Weigh pros, cons before making alcoholism allegation against ex

By Staff

Allegations of alcohol abuse can be a double-edged sword for former spouses in litigation, Toronto family lawyer Lisa Gelman tells

Gelman, principal of Gelman & Associates, says complaints about a former partner’s alcohol use is often raised in the lead up to — and following — a separation. However, she says the tactic has pros and cons for the person making the claims.

“On the one hand, allegations of alcoholism can be advantageous to a parent’s claim for custody of any children. The downside is that it may damage any claims for child or spousal support from that person,” she explains. “If alcohol dependency prevents them from being employed, then they can make a case that they shouldn’t have to pay support while they seek treatment.

“When you’re thinking about making a claim about addiction, you need to weigh the benefits achieved in court against the potential downsides,” Gelman adds.

When it comes to custody and access, she says judges will only take alcohol use by one parent into consideration if it can be shown that their consumption impacts their ability to look after the children.

“Just because someone has too many drinks once in a while doesn’t mean they are going to be incapable of taking proper care of a child,” Gelman says. “If the evidence falls short in terms of showing that there is some kind of impairment, then it’s unlikely to have a negative effect on the proceedings."

She says judges will also look at the severity of alleged incidents where a parent became incapacitated by alcohol while they were caring for children.

“If it’s shown that it was an isolated incident, the court is more likely to be sympathetic, but may still be mindful of the risks of it happening again in future,” Gelman says. “But if there are many incidents that raise concerns about a child’s safety, then the court is likely to take a stricter approach and put more guards in place with respect to unsupervised access.”

Gelman says family law litigants have a number of options for monitoring a spouse’s alcohol use. For example, in a recent case, an Ontario Superior Court judge ordered the respondent to abstain from alcohol during access visits with his son and for 24 hours prior.

The ruling provided for regular testing using the Remote Alcohol Monitoring Program, which works by sounding an alarm at intervals, according to Gelman. The monitored person must then blow into a handheld device, which automatically sends the results to a central system. The monitor is also fitted with a camera to verify the identity of the individual whose breath is being tested.

With the impending legalization of marijuana for recreational use, she says parties may soon take a similar approach to the irresponsible use of the drug.

“Until now, when pot use was raised, the focus was on its illegality, rather than incapacity,” Gelman says. “We may see that focus shift once it’s legalized, with parties claiming that a parent is too stoned to take care of the children.”

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