What do you do when your ex makes allegations that you have been using drugs? Can your ex make this allegation and expect you to undergo numerous tests simply on the basis of his or her accusations? Will a Judge listen to such accusations without any further proof?
There is no specific test outlined under the Family Law Act in British Columbia setting out when a Judge may order a parent to undergo drug testing. The primary test under the Family Law Act, that governs all decision a Judge in BC may make in relation to custody and access cases, is the Best Interests of the Child. We at Hart Legal argue that a Judge certainly must have some evidentiary basis that is not weak or circumstantial before a parent can be made to undergo such a test. We argue that an ex’s accusations that are geared towards an attempt at changing parenting arrangements is not enough to require a law abiding citizen to undergo such tests.
This argument is certainly supported by referencing the law in other jurisdictions such as California. The California Family Code specifically deals with drug screening tests and when a court may order such a test. Section 3041.5 of the California Family Code states that a court may order a person to undergo testing for illegal use of a controlled substance if there is judicial determination based upon a preponderance of evidence that there is:
- or continual illegal use of controlled substance.
The California Family Code further sets out the type of evidence that would be required for the court to have prior to ordering a drug screen test, such evidence including, but not being limited to:
a conviction within the last five years of use or possession of a controlled substance.
Furthermore, the California Family Code sets out that the court cannot order intrusive testing and is required to pick the least intrusive method available. The most common test being urinalysis. The type of drugs a urinalysis tests for are:
- Opiates (codeine, morphine, 6-acetylmorphine)
Unfortunately, there is no such specific test under the Family Law Act, that governs the decision of a Judge in cases of allegations of drug abuse. There are some cases where Judges in British Columbia have made orders for hair follicle testing with arguably no preponderance of evidence that there is habitual, frequent or continued illegal use of drugs.
At Hart Legal we will ensure that we determine the merits of your case, whether you are making the allegations or the allegations are being made against you. We will gather evidence and ensure that your best foot is put forward before the Judge and ensure that your rights to be free from unreasonable search and seizure are protected. We believe that every individual, including parents are entitled to protection from unreasonable search and seizure and that a drug test ought not to be ordered unless there is more than weak and circumstantial evidence of drug use before the court.