The court rejected his defence of second-hand ingestion
The Ontario Superior Court of Justice has ordered supervised parenting time after the father of a five-year-old boy failed his drug tests.
In Shankman v. Dennison, 2023 ONSC 5648, the mother of a five-year-old boy brought an urgent motion for an order that the contact between her son and his father be supervised. The parties previously operated under an unsupervised shared parenting arrangement.
The court noted that it was the second in just over two months that the mother brought a similar urgent motion. The first was argued in July, leading to the court’s decision to dismiss the mother’s request that the father’s parenting time be supervised.
The court considered two affidavits advanced on behalf of the mother. Those affidavits set out that the father failed two further drug tests since the matter was last heard in court over two months ago. The father’s most recent failed drug test was administered in August and showed the presence of cocaine metabolite in his system.
In addition, the mother also alleged that drug paraphernalia was found in the child’s backpack, that the child’s clothing was not changed in the father’s care, and that the child’s backpack went missing in the father’s care under questionable circumstances.
The father categorically denied all of the mother’s allegations, asserting that the failed drug test in August was the result of indirect ingestion of cocaine through sex with a woman who used cocaine, that the photos of drug paraphernalia were staged, and that the allegations of improper care were false.
The father relied on the written response of his addictions counsellor, Dr Conrad Sichler, to his counsel’s written questioning regarding the integrity of his explanation for his failed drug test. Dr. Sichler wrote that the father’s rationale “can be a possible” explanation for the finding of cocaine in his system.
However, the court was not convinced by either the father’s explanation or Dr. Sichler’s defence of his account. The court found Dr. Sichler’s evidence offered an unsatisfactory response to the concerns raised by the failed tests.
The court noted that Dr. Sichler appeared willing to give a wide berth to the father’s explanations for his positive drug tests. Dr. Sichler said the father’s claim of cross-contamination can be a possible explanation. However, the court pointed out that Dr. Sichler failed to explain or analyze why cross-contamination may or may not be an explanation for yet another failed drug test.
The court found that the father and his counsel did not pinpoint Dr. Sichler’s exact area of expertise, despite case law’s requirement for a suitably qualified expert. If it is addiction medicine, it is necessary to delineate what that means and what opinions Dr. Sichler can safely offer the court.
The court found that Dr. Sichler is not a toxicologist and has no training in that area. He described his practice as family medicine, addiction medicine and psychotherapy. However, the court pointed out that his CV contained no reference to a fellowship or any other specialization in addiction medicine. The court said Dr. Sichler is a family doctor with extra addiction training – his work in addictions concerns psychotherapy and family medicine.
Moreover, the court said none of Dr. Sichler’s evidence could support the father’s various assertions of second-hand cocaine ingestion. He offered no references to studies, monographs, recognized experts in the field or other authorities for his views that such ingestion is possible.
Ultimately, the court declined to accept Dr. Sichler’s opinion as to the etiology of the drugs in the father’s system.
The court also found it relevant that the mother raised her concern about the drug paraphernalia in the child’s backpack following the failed drug test and the child’s weekend with the father.
Furthermore, the court was concerned with the events related to the child’s missing backpack and the inconsistent accounts of its fate. The court said the various versions of the missing backpack story were troubling and inconsistent. They raised many questions, some pointing to a laxity in the father’s child care.
The court wrote in its decision, “This is a case where the most simple and obvious explanation is likely the most accurate one: the father failed three drug tests in three months because he was using cocaine, at least occasionally.”
Accordingly, the court ordered the father’s parenting time to be supervised by a family member or another person agreed upon.
