Navigating Divorce and Substance Abuse in Ontario

Divorce is a complex legal process, and it has many emotional repercussions as well.  Every couple has its own unique relationship history; each spouse has unique strengths, needs, and shortcomings that they bring to the negotiating table.

When substance abuse is part of the mix, the process of divorce can become significantly more complicated. In Ontario, the Family justice system takes a focused approach to addressing this factor, while still prioritizing the best interests of any children of the marriage. 

This brief article will discuss some of the issues you may want to consider if substance abuse is an unfortunate part of your life – and is inevitably a factor in your divorce as well.

What is Substance Abuse?

Simply put, substance abuse typically refers to the misuse of alcohol, drugs or subscription medication.  

In Canadian Family law, there is no set definition of what is considered “substance abuse”, but a common-sense approach prevails:  It can involve the typical observed evidence of dependency such as heavy and routine consumption of drugs or alcohol, followed by persistent inebriation or drug-fueled disorientation. It will often involve missed work, lack of shared family responsibility, financial misconduct or other obvious signs.  

Note that if there is drug/alcohol addiction or abuse marriage, and you want to raise it as a factor in your court-ordered divorce, you may need sufficient evidence in the form of medical records, police reports, documented personal observations, or witness testimony to support your claim.  If there are children involved, a court may also ask for parenting capacity assessments 

How Can Substance Abuse Impact My Divorce? 

Substance abuse can influence divorce proceedings in various ways, for example:

• It may be cited as a reason for the breakdown of your marriage, particularly if the substance abuse led to financial strain, emotional abuse, or neglect of responsibilities by one or both of you. 
• If you have children, it can play a key role in the court’s determination of how parenting time and decision-making responsibility should be allocated between you.
• It can factor into the court’s determination of spousal support entitlements, and how they should be calculated. 

Financial Considerations

Substance abuse can influence the financial matters in your divorce, and in particular how they are dealt with by a court. In particular: 

• Depletion of assets:  Under the Ontario Family Law Act, the judge must aim for a fair distribution of your assets in keeping with established legal principles.  The presence of substance abuse by your spouse can tip the scales in your favour if the court concludes that it has caused a depletion of your matrimonial property. 

For example, if your spouse has a history of serious cocaine abuse and has depleted your family’s financial resources in order to fund his or her dependency, the court may take this into account in your divorce when dividing up your property. 

• Spousal support entitlements: If you are seeking spousal support from your drug- or alcohol dependent spouse, the court may consider whether the addiction has affected his or her ability to work or contribute financially to your marriage – and to pay support to you after your divorce. 

On the other hand, if you are the one who has the dependency, the court may scrutinize your claims for spousal support, and examine whether your addiction has caused your financial dependence – or else has prevented you from becoming self-sufficient. 

Related: How to Prepare For Living on Child Support and Spousal Support

The Best Interests of Your Child

If you and your spouse have a child together, the issue of substance abuse takes on a heightened gravity in your separation and divorce. 

In Ontario, parenting time and decision-making responsibility over your child is determined by the court based on what it considers to be his or her “best interests”.  This is a specific approach that the Family courts must take, as mandated by the federal Divorce Act and the Ontario Children’s Law Reform Act.

The presence of substance abuse in your marriage is one of the factors that a court will take into account when making this “best interests of the child” determination.  The court will take a close look at how its presence may affect your or your spouse’s ability to provide a stable safe environment in which your child’s wellbeing is fostered.

Specifically the court may consider the following:

• How frequent and how severe the substance abuse is. If one or both of you abuse drugs or alcohol only occasionally, or use it only recreationally, this will likely be considered less significant than if there is chronic or severe addiction at play. 
• Impact on parenting abilities:   The court will ask the key question of whether your or your spouse’s substance abuse impairs the ability to meet your child’s physical, emotional, or psychological needs. 
• Risk of harm: The court will also assess whether your or your spouse’s substance abuse exposes your child to physical or emotional harm, or to any unsafe conditions.

In some cases, the court may order only supervised visitation or restrict access to whichever of you is afflicted, until there is a demonstrated commitment to sobriety and rehabilitation. 

Related: 

• The Impact of Substance Abuse on Child Custody: A Case Study
• Can Prior Drug Convictions Affect Child Custody? A Divorce Lawyer Explains

How Do I Protect Myself?

If you are divorcing a spouse with known substance abuse issues, it is crucial to protect yourself and any children involved. Here are some steps to consider:

• Document the evidence: Keep records of incidents related to substance abuse. This includes police reports, medical records, and texts or any other communications that demonstrate how it’s impacting you and your children.
• Focus on your children’s best interests: Orchestrate whatever arrangement you can, to shield your children from the impact.  Put a future plan in place that will demonstrate to the court that your proposed parenting plan will foster your child’s best interests.
• Seek legal and practical support: Engaging a lawyer experienced in family law can help you navigate the legal complexities. Also consider consulting with addiction specialists or support groups to better understand the everyday realities and the issues that arise from your situation.

Can I Prevent My Spouse from Having Access to the Kids? 

If your spouse is struggling with substance abuse, this does not necessarily mean that he or she will be blocked from seeing your children after separation or divorce. 

• Courts are directed to foster both your and your spouse’s parental relationship – provided it remains in your child’s best interest to do so.  
• Courts may also be willing to revisit parenting time and decisions-making allocations if your spouse can eventually demonstrate that they are overcoming their addiction in a significant and lasting way.  This might involve enrollment in rehabilitation programs, attending counseling, and providing evidence of sobriety.

Conclusion

Divorce is already challenging, and the presence of substance abuse can make it even harder. If substance abuse is a factor in your divorce, it’s important to get the advice of an experienced Family lawyer to help navigate your rights and receive the best possible outcome. 

For personalized advice tailored to your own situation, feel free to contact our offices.