Can a judge prohibit a parent from consuming alcohol - even if the child is not in his care? 

In Ontario, the Children's Law Reform Act allows a judge to make child access orders that would be in a child's best interest such as "prohibiting a party or other person from engaging in specified conduct in the presence of the child or at any time when the person is responsible for the care of the child."

But in the Quebec case of D.V. v. E.W. [2013] Q.J. No. 15783, the Quebec Court of Appeal was faced with an appeal from a judgment which ordered the father to abstain from consuming alcohol at all times and to attend Alcoholics Anonymous. 

The father argued that "ordering him to abstain from drinking alcohol constituted a disproportionate constraint on his freedom to conduct his life as he saw fit in the absence of his children, whom he only saw a few days per month". He argued that this order amounted to "an undue restriction on his freedom that was not justified by the children's best interest."

Drawing a balance between child safety and a parent’s freedoms and child access rights

At trial, the mother presented evidence of the father's history of alcohol dependency and that his license had been suspended for impaired driving. She felt that the father's consumption of alcohol constituted a danger for the children. The father acknowledged his past problems with alcohol, but said that it was under control. He stated that he drinks approximately one beer per month at present.

The trial judge wrote that "even though [the father] feels his drinking is under control and the proof on the record bears this out, the court believes it advisable that a support safety net be in place, if not for his sake, then for the sake of his children." The trial judge ordered the father not to consume any alcohol until the children have attained the age of majority.

The father appealed to the Quebec Court of Appeal and argued that this order violated his rights under the Canadian Charter of Rights and Freedoms and the Charter of Human Rights and Freedoms. He stated that a more suitable order would be for him "to refrain from consuming alcohol in the presence of his two minor children and at least one day prior to his access rights".

In allowing the appeal and removing this restriction, the Quebec Court of Appeal ruled that the trial judge's ruling "constituted a disproportionate constraint on the appellant's freedom to conduct his life as he sees fit in the absence of his children. As such, he did not have a proper evidentiary justification based on the best interests of the child criterion, the sole factor relevant to the fixing of access rights pursuant to subsection 16(8) of the Divorce Act. The evidence did not reveal the [the father's] alcohol consumption amounted to a real and present danger that would justify such a substantial limit on the exercise of his access rights."

If you let the divorce process get drawn out, child access and custody negotiations often turn unnecessarily acrimonious.

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