Alcohol monitoring in family court in Canada

When a parent's drinking is raised in a Canadian parenting case, judges and lawyers often turn to alcohol monitoring: the parent takes breath tests at set times, and the results go to the other parent. This guide explains the laws that apply, how monitoring ends up in an agreement or a court order, what Ontario courts have said about it and what the order should cover.

This article is general information and not legal advice. Family law is different in each province and territory, and every case turns on its own facts, so speak with a family lawyer about your situation.

In short

• Canadian family courts decide parenting arrangements based only on the best interests of the child.
• A court can make alcohol monitoring a condition of parenting time, and Ontario judges have ordered parents to use remote breathalyzers.
• Monitoring isn't automatic. The parent asking for it has to show why it is needed.
• The parent being tested usually pays, although courts have split the cost.
• Monitoring is often used instead of supervised parenting time, so the parent keeps their time alone with the child.

The laws that apply

Which law applies depends on whether the parents were married and where they live. Since March 1, 2021, the federal Divorce Act and Ontario's Children's Law Reform Act use the terms parenting time and decision-making responsibility instead of custody and access.

The other provinces and territories have their own family law statutes, and all of them decide parenting issues on the best interests of the child.

Under section 16 of the Divorce Act, the court must give primary consideration to the child's physical, emotional and psychological safety, security and well-being. A parent's past conduct only counts when it is relevant to their parenting time, and a child should have as much time with each parent as is consistent with their best interests. That is why monitoring is attractive: it addresses a safety concern about drinking without cutting the parent's time with the child.

Section 16.1 lets the court attach any terms, conditions and restrictions it considers appropriate to a parenting order, or require that parenting time be supervised. Provincial laws give courts similar powers, such as section 28 of Ontario's Children's Law Reform Act.

How alcohol monitoring ends up in a case

1. By agreement. The parents include testing in a separation agreement or a parenting plan, often after mediation.
2. By consent order. The parents agree on the terms and ask the court to turn them into an order, so they can be enforced.
3. On a motion or at trial. One parent asks a judge to order monitoring, either as a temporary measure while the case goes on or in a final order.
4. Through child protection. A children's aid society or another child protection agency may ask a parent to test as part of a safety plan.

What Ontario courts have said

In Gibbons v. Byrne, 2024 ONSC 3898, the Ontario Superior Court of Justice set out how judges decide whether to order alcohol monitoring as part of parenting time. There is no separate legal test: the question is whether monitoring is in the child's best interests under section 24 of the Children's Law Reform Act. The factors the court weighed included:

• whether the parent has used a breathalyzer before, or has admitted drinking and driving
• how the parent behaves when drinking, such as becoming angry
• whether the parent minimizes their drinking or lacks insight into it
• the risk to the children's emotional and psychological safety
• whether the other parent's concern has been consistent over time
• evidence from third parties, such as children's aid society records

Because monitoring is an invasive restriction, the parent asking for it carries the burden of proving it is needed, and courts look for compelling evidence. Courts have also recognized that monitoring protects the tested parent, by giving them a way to answer false allegations of drinking and to rebuild trust with the other parent.

In Klymenko v. Klymenko, 2020 ONSC 5451, the court ordered remote alcohol monitoring as an alternative to supervised parenting time, which it saw as a much bigger intrusion into the parent's relationship with the child. In R.A. v. D.A., 2023 ONSC 2873, the court split the cost of monitoring between the parents because there was no current evidence that the tested parent was drinking around the children.

Ontario decisions have named specific monitoring devices, including Soberlink, BACtrack and SCRAM. If your order names one, speak with your lawyer about getting the other parent's written agreement or a change to the order before you switch to another service.

What the order or agreement should cover

• The alcohol restriction. For example, no alcohol for a set number of hours before and during parenting time.
• When tests happen. Usually before each pickup, during the visit and before the drop-off, with random tests if the concern is daily drinking.
• The monitoring service. Name the service, or describe what it must do, such as a breath test with a video identity check and results sent as they happen, so a comparable service can be used.
• Who receives results. The other parent, and if needed the lawyers or a parenting coordinator.
• What counts as a breach. Many agreements treat any detectable alcohol as a breach, not only a reading above the legal driving limit. Say how long the parent has to take a scheduled test before it counts as missed.
• What happens after a breach. For example, a retest within a set time, the parenting time being cancelled or rescheduled, and notice to the lawyers.
• Who pays. Whether the tested parent pays alone or the cost is shared.
• How long it lasts. A review date, and what record is needed to reduce or stop testing.
• How results can be used. For example, only for the family law case and not shared outside it.

Example wording to discuss with your lawyer

[Parent A] shall not consume alcohol within [24] hours before or during their parenting time. [Parent A] shall use a remote breath alcohol monitoring service that records a video and the location of each test, such as Druchol, and shall test before each pickup, at [times] during their parenting time and before each drop-off. [Parent B] and both lawyers shall be added to receive results. A missed test, or a test showing any alcohol, is a breach, and [Parent B] may cancel the remaining parenting time for that visit. [Parent A] shall pay the cost of monitoring. The parties shall review this term after [6] months.

This is an example only. The right terms depend on your case and your province, so have a lawyer review any wording before you sign it or file it.

How Druchol works for Canadian families

• Druchol is a Canadian service, priced in Canadian dollars: $79 CAD a month plus a $150 CAD breathalyzer, plus applicable taxes, with free shipping and no contract.
• Tests can be scheduled around parenting time, set at random up to 4 times a day or requested on the spot, with a reminder about an hour before each one.
• Every test is recorded on video with its location, so the other parent can see who took it and where.
• Every reading is saved with its exact BAC, so monitors can see any alcohol, not only tests at 0.08% or higher.
• Add the other parent, the lawyers or a parenting coordinator as monitors or viewers, at no extra cost.
• Monthly PDF reports have a QR code that opens the official copy on druchol.com, so anyone can check that a report hasn't been changed.
• The website, app, emails and reports are available in English and French.

Sources

• Divorce Act, section 16 (Justice Laws Website)
• The Divorce Act Changes Explained (Department of Justice Canada)
• Children's Law Reform Act, R.S.O. 1990, c. C.12 (Ontario e-Laws)
• Court-ordered alcohol monitoring during parenting time (Ontario Family Law Matters)

Frequently asked questions

Can a family court in Canada order alcohol testing?

Yes. A judge can attach conditions to a parenting order, and Ontario courts have ordered parents to use a remote breathalyzer before and during their parenting time. The parent asking for monitoring has to show that it is in the child's best interests, usually with evidence about the other parent's drinking.

Does the other parent have to agree to alcohol monitoring?

No. A judge can order monitoring without the tested parent's agreement. Many families still set it up by agreement, in a separation agreement, a parenting plan or a consent order, which is usually faster and less expensive than a contested motion.

Who pays for alcohol monitoring in a Canadian custody case?

The order or agreement should say. The parent being tested usually pays, but Ontario courts have split the cost between parents in some cases. Druchol is $79 CAD a month plus a $150 CAD breathalyzer, plus applicable taxes, with no contract.

Is alcohol monitoring an alternative to supervised parenting time?

Often, yes. Ontario courts have treated remote alcohol monitoring as a less intrusive way to address drinking concerns than supervised parenting time, which takes away the parent's time alone with the child.

Will a Canadian court accept Druchol test results?

Courts decide case by case what evidence they accept, so no monitoring provider can promise that a court will rely on its results. Druchol gives you a dated record of every test with the BAC reading, a video of the person taking it and the location, plus reports that can be verified online. If an order names a particular device or service, follow it and speak with your lawyer before making any change.

Is Druchol available in French?

Yes. The Druchol website, app, emails and reports are available in English and French, which helps families in Quebec, New Brunswick and French-language proceedings elsewhere in Canada.

How long does court-ordered alcohol monitoring last?

The order or agreement sets the length. Many set a first period of monitoring followed by a review, so testing can be reduced or stopped once the parent has a consistent record of negative tests.