Who Gets the Kids | Is Drinking a Problem?
Divorce or separation is a very stressful time BC couples’ lives. In most cases, it’s the most stressful thing you’ll ever have to deal with. In times of such excess stress, you or your ex might reach for the bottle. The question is: In divorce or separation proceedings in BC when does drinking (yours or your exes) become a problem? The answer is the same that you’ll find in any other areas of your lives. That drinking in excess is always a problem. Often you should get help, examples of help you may get are found here.
When it comes to your divorce or family law case, the most important way that a drinking problem may be relevant is in relation to the children.
As we have covered before, the best interests of the child are the only consideration for the court on parenting applications. Period. There is no single formula for determining what that means and each and every case will be different. The court has, however, considered when a parent should have more limited access to their child based on an alleged drinking problem.
Pidgeon v. Pidgeon, 2011 BCSC 851
In Pidgeon, the parties had two daughters who were 10 and 7 years old. The mother testified that the father had a drinking problem and sought to limit his contact with the children. The husband wanted to share parenting time equally. Prior to trial, the mother had expressed willingness to share parenting time with the father if he dealt successfully with his drinking problem but by the time of trial, she wanted sole custody. At trial, the mother provided the court with an expert report which opined that the mother should have sole custody of the children. At paragraph 163, the court states that it is “satisfied by the evidence at trial that unless and until Mr. Pidgeon succeeds in getting his problems with alcohol under control and his life on an even keel; he is not capable of consistently providing [the children] with safe and nurturing parenting.”
The court notes that the children ought to have regular contact with the father, but finds that when the father drinks the children are at risk both physically and emotionally. Although the father claimed that his excess consumption of alcohol was in the past, the court noted that he had told other judges earlier in the proceedings the same thing but continued to abuse alcohol afterwards. The court specifically found that the father was not above misleading the court to get what he wanted.
In the result, the court awarded the mother full custody and allowed the father supervised access only.
RMB v. BHB, 2013 BCSC 148
In RMB, the wife had two pre-relationship children of her own (19 and 18 at the time of trial) and the parties had one child together who was approximately 7 years old at the time of trial. The court found at trial that the wife had an alcohol abuse problem that she refused to address. The problem was such a concern to the husband that he obtained a pre-trial order that the wife submit to hair testing, an order that she then ignored for approximately 2 months. Once the order was finally fulfilled, the wife’s sample tested at 1.907 ng/mg (1.00 indicates chronic alcohol abuse). The husband received another order requiring that the wife provide the court with an updated test for trial, which was never done.
In addition to the hair test, the expert opinion presented to the court referenced the wife’s drinking problem and the unfulfilled hair test. In the report, the author opined that if the wife did abuse alcohol, the court should consider in its findings: “(a) substance use counselling, (b) condition that [the wife] is not to consume any alcohol while she has access with [the child], (c) condition that [the wife] only drive [the child] in her vehicle and that vehicle be equipped with an ignition interlock breathalyzer… and, (d) urinalyses or serum analyses at random intervals to insure alcohol is not consumed during periods of access. If there is a problem and if it escalates, supervised access will need to be considered”.
In deciding whether the father or mother should have custody of the child, the court considered that the mother has frequently disobeyed court orders and there is no indication that she will suddenly choose to obey them. The court found that it was in the child’s best interests that the father have sole custody and guardianship of the child, but would not allow the father to move from the child’s hometown as he had applied to do.
Bentley v. Bentley
The Bentley case involved two children who were 14 and 12 years old. Between the date of separation and the trial date, the parents shared parenting time 50/50. At trial, the father asked the judge to limit the mother’s access to the children. The father claimed that the mother had a drinking problem during the relationship and after the relationship. The mother admitted to having a drinking problem during the relationship and leading up to the separation, but claimed to no longer have a drinking problem.
At the father’s request, the mother consented to attend a rehabilitation centre for 42 days, which she attended before trial. Following the mother’s attendance at the rehabilitation centre, the mother testified that she no longer had a drinking problem. The judge found that the father presented little to no evidence that the mother had a drinking problem following rehabilitation. The judge noted that the father presented no evidence that it was in the children’s best interests to have their time with their mother limited and found that the parenting schedule should remain shared at 50/50.
For more information or for a free consultation on the above issue, please contact us.