Law Times

Law Times • November 9, 2015 Page 9 www.lawtimesnews.com Motherisk controversy Family law bar reconsiders zero tolerance for drugs BY JUDY VAN RHIJN For Law Times s the efficacy of drug- testing procedures in child protection and family law matters comes under review, a new dia- logue is opening up on the nega- tive implications that automati- cally follow a positive result. Absent other evidence of risky behaviour and in the face of other signs of responsible par- enting, some family lawyers are questioning whether it's possible to ensure a family's functioning without total abstinence. The issue arises amid the con- troversy over hair testing by the Motherisk program at the Hos- pital for Sick Children. With test results under suspicion, the con- troversy leaves an opening for other factors to play a greater role, particularly evidence of the actual parenting abilities of those who have drug and alcohol histories. Katharina Janczaruk, chair- woman of the Family Lawyers Association and co-author of its submissions to the indepen- dent review of the Motherisk program, suggests the concerns around drug testing have herald- ed a new approach. "What we saw initially was that courts weren't ordering testing," she says. "They expected it would be challenged and that the chal- lenge may be successful, so there was little purpose to ordering it. There has been some work with other testing facilities, but people are cautious in terms of relying on that. The fact of the matter is that we don't know the science. Our members say they really don't know if it's reliable." Janczaruk notes testing was really convenient and perhaps too easy. "It got to the issue quickly. If the client litigant is de- nying drug or alcohol use, they see the test result and an admis- sion f lows. In child protection matters, it would set the tone in terms of where the litigation was going. We were collectively using tests to establish a benchmark in terms of use. That doesn't happen anymore. We don't talk in terms of a benchmark now. It is 'use' or 'not use' or 'excessive use.'" Janczaruk notes testing was also part of monitoring efforts. "Now we do that through social work — going out and getting re- ports from the community. Some of the community services did testing but not anymore. There are other measures within the community to monitor parents." A key factor, she adds, is the recognition that addiction is a long-standing and ongoing issue. "It's a life issue. If service provid- ers say parents are not engaging, then the concern is not addressed and the parent is not going to be successful. In a typical addiction case where you are establishing that a child is not at risk, a lawyer shows that the client is engaged with the services." In its first submission to the Motherisk review, the asso- ciation suggested that counsel, child protection agencies, and the courts must divest them- selves of the notion that a lab re- sult will provide absolute truths and should instead look to other evidence. "There has always been more than one factor in- volved in Motherisk cases," says Janczaruk. Members of the association report that almost half or more of their child protection cases in- volved drug or alcohol hair test- ing and that the results were in- f luential in less than half of those matters. Most lawyers agree, however, that it was rare to have a case where the only evidence would be the test result. Now, those other kinds of evidence are coming to the fore and a new openness about the available out- comes has come with them. In relation to the way assumptions about parenting ability have tra- ditionally f lowed from a positive test result, the association stated in its submissions: "This recent controversy involving Mother- isk has also prompted a deeper ref lection about whether there is an overreliance on this form of testing to determine parenting ability and risk to children." Among the issues, according to Janczaruk, is whether the par- ents are using drugs or alcohol, the extent of their use, and their parenting ability. "There is a con- cept in child protection law of the good enough parent. We don't remove children with less than perfect parents. It's a question of degree. For example, a parent may be a binge drinker who habitually binges on the weekend. Maybe they send the children away to family from Friday to Sunday. There will be some overf low into their Monday-to-Friday life but not to the extent that they can't parent. What other accommoda- tion can we make? The member- ship really felt that drug testing didn't answer all those questions." Despite recent events, most members of the association feel that a test could still be a use- ful tool. "The benefit of having a test that's accurate is that it gets to the nut of the issue very quickly so you can then ad- dress it quickly," says Janczaruk. "Once the issues are identified, you can get the services lined up for your client and convince the court that your client is doing what is necessary. Sometimes, an admission that there's an is- sue can advance the case." She says that if there's going to be a test, there has to be some way to challenge it. "We have talked about how that could be done, perhaps by secondary testing or retaining the results. The diffi- culty is that most litigants have low income, so we need a mecha- nism for funding. We are looking to legal aid for that." The association believes it would be helpful to establish protocols for the use of hair testing for child protection and family law purposes. In the meantime, Janczaruk is looking forward to reading the report of the Motherisk review that's due by Dec. 15. "Justice Susan Lang has her work cut out for her. She is a very talented jurist, so we are confident that she will come up with something that will make interesting reading." LT FOCUS Essential Tools for Family Law Professionals For more information, visit www.divorcemate.com 1.800.653.0925 x407 | sales@divorcemate.com NOW AVAILABLE! ADD FREEDOM & FLEXIBILITY TO YOUR PRACTICE DM Tools Cloud Work anywhere, anytime, on any device. For child and spousal support calculations. Available for PC, Mac, tablets and smartphones. Untitled-1 1 2015-11-04 9:02 AM Yonge Richmond Centre 151 Yonge Street | Suite 1404 Toronto, ON M5C 2W7 416.865.0504 littler.com Your people and employment law challenges cross borders, times zones and cultures. 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