The recent decision in Shankman v. Dennison, 2023 ONSC 4265, serves as an important reminder about the importance of clearly drafted minutes of settlement and consent orders when substance abuse is an issue.
Background
By way of background, the parties are unmarried parents who both struggled historically with substances issues – the mother with alcohol abuse and the father with drug addiction leading to professional discipline. After charges were laid against Dr. Shankman for allegedly assaulting Ms. Dennison, the parties separated in 2022. Dr. Shankman brought an urgent motion regarding Ms. Dennison’s drinking, resulting in the signing of minutes of settlement on May 30, 2023. The minutes required each party to undergo testing but lacked specificity regarding details of Dr. Shankman’s drug testing obligations.
Urgent Motion
When Ms. Dennison brought a new urgent motion after Dr. Shankman tested positive for cocaine in June and failed to undergo regular testing, Justice Kurz declined to order supervised access given the vagueness in the minutes. The minutes simply required Dr. Shankman to “commence random drug testing” but did not specify details like testing frequency.
As a result, when evidence surfaced that Dr. Shankman had only undergone testing twice since the minutes were signed and tested positive for cocaine on one occasion, Justice Kurz found that this did not clearly violate the terms. He noted the minutes were “imprecise” regarding testing obligations. His Honour strengthened the testing terms considerably.
Practical Application
This case highlights several practice points when minutes or consent orders involve addiction issues:
- Specify frequency of testing (e.g. weekly, bi-weekly). Do not simply rely on the term “random.”
- Clarify what constitutes a “failed” test by including cut-off levels for drugs of concern.
- Include clear terms about information sharing regarding test results between parties and with professionals treating the individual who has the substance abuse issues.
- Consider building in automatic provisions for supervised access in event of failed tests.
- Turn minutes into a consent order quickly to allow enforcement if non-compliance occurs.
Family lawyers know that substance abuse poses complex issues in custody/access cases. By taking extra care in drafting clear and detailed terms around testing and information sharing, we can avoid some of the pitfalls that arose in this unfortunate case.
Let’s continue to elevate the practice of family law in Ontario!
Cheryl Goldhart is a mediator and arbitrator who can make a difference in resolving your family disputes.
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