Canadian Lawyer

34 www.canadianlawyermag.com that you can bring some of the issues in front of the judge or arbitrator through expert evidence. "It's interesting from a legal perspective, but it's frightening from a client's perspective." Pawlitza says the options for testing are far from perfect — "there's no foolproof, go-to solution for how you test for substance abuse in these circumstances if you have a user who is determined to beat the test. "The best solution is to have an order with very specific language for collecting the sam- ples and to make sure the lab follows it to the letter," she says. Johnson says there are the same concerns over the accuracy of the tests in Alberta. "I was told by other members of the fami- ly bar that the courts would no longer accept hair follicle tests," he says, but he adds that it didn't change his practice in that he still re- quests the tests. If a client has been accused even of over- use recreationally of marijuana, he will advise them to stop using if they are and volunteer to start taking tests — even though it may take a few months for any significant level of THC not to show up. Johnson once had a client where, because "we wanted to prove to the father that al- though she definitely suffered from alcohol- ism . . . she went to rehabilitation, was clean and sober, so as part of the arrangement to avoid any sort of formal monthly testing or supervised access or things of that nature, we volunteered to put a breathalyzer in her car." You can't do something like that with mari- juana, so "it's unique," he says. "This is the murky part, especially when you are dealing with brand new legislation for the legalization of marijuana. Alcoholism, sadly, is almost easier." Despite the limitations, Johnson says, he's "still absolutely going to rely on testing, still going to request testing — testing is still some of the best evidence in court," especially for someone to prove that they don't have an al- leged problem. "The inherent danger in any system is how people are cheating it, but it doesn't change the fact that evidence through testing is still what's critical in court." "The inherent danger in any system is how people are cheating it, but it doesn't change the fact that evidence through testing is still what's critical in court." Chad Johnson, McLeod Law LLP LEGAL REPORT FAMILY LAW PERCENTAGE OF PEOPLE WHO REPORT USING CANNABIS, Q4 2019* *StatsCan N.L. P.E.I. N.S. N.B. Que. Ont. Man. Sask. Alta. B.C. 0 5 10 15 20 25 30 25.9% 27.5% 18.4% 14.3% 16.3% 17.3% 14.4% 16.7% 19% 20.9%

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