The private investigator waited patiently outside a Hamilton Tim Hortons, covertly observing the arrival and departure of an adult and a child in a tinted van.
For the next six days, the researcher supervised three addresses the boy attended, sometimes until the early hours of the morning. They would notice that their subject, the boy’s father, periodically poked his head out the front door and reported that there was a “strong smell of cigarettes and secondhand smoke emanating from the subject’s residence” when walking through the building.
The surveillance shows how far an Oakville mother has gone in trying to prove that her ex-partner is exposing her three-year-old son to secondhand smoke, which she says has affected his health.
The case highlights a gray area in the legislation when it comes to secondhand smoke exposure: while it is prohibited in vehicles near children, in workplaces, and in common areas of shared buildings, there is no such rule for private homes. . Some, like Magdalena, say this should change, while a medical expert who spoke to the Star compared secondhand smoke exposure to child abuse.
But child welfare agencies have been reluctant to get involved in parental disputes over exposure to secondhand smoke, and a children’s attorney in Toronto said he is unaware of the problem affecting the outcome of court cases.
For three years, Magdalena has had a dispute with the boy’s father because she alleges that he constantly smokes around his son. (The Star does not publish her last name to protect the girl’s privacy.)
The three-year-old’s father told the Star he did not want to comment, but denied that he smokes around the boy.
Magdalena said that the entities created to protect children have been indifferent to their plight. She believes that if this were a problem for a parent who abuses drugs or alcohol, it would be taken more seriously.
“Nobody cares,” he said. “I feel like if it were the daughter or son of a judge, things would be different.”
Magdalena argues that a home should be the safest place for a child, but when it comes to secondhand smoke, a private home is actually one of the only places where they are not protected.
The Smoke Free Ontario Act prohibits smoking in a vehicle with a child present, in workplaces and in common areas of shared buildings, but does not cover children in private residences. Some experts and health advocates say that must change.
“It’s a dilemma,” said Pamela Kaufman, an assistant professor at the University of Toronto and a scientist with the Ontario Tobacco Research Unit. “The Smoke-Free Ontario Act has not addressed the issue of smoking in private residences … (but) recognizes that there is no identified safe level of secondhand smoke.”
According to the 2019 Statistics Canada Census, 13.8% of Ontarians smoked daily or occasionally, with the highest rate among men ages 20-64. A report published by Physicians for a Smoke-Free Canada says that smoking is the leading cause of preventable death. in this country. Secondhand smoke is number 11 and is the leading risk factor for more than 3,100 deaths a year.
Magdalena and her ex-partner started dating in 2017 and lived together for about a year. During that time they had a son before separating. Magdalena says that smoking was one of the main factors and that she felt that he was putting the health of her children at risk.
He first complained to the Children’s Aid Society, which opened an investigation and ultimately concluded that exposure to secondhand smoke is not a child protection issue and that the father was not putting the child’s health at risk.
He then went to court, requesting that the child’s visitation be supervised by a family member or a social worker. That request was rejected, but the courts issued two orders for the father not to smoke near the boy, the most recent on September 15.
The judge disagreed with Magdalena’s approach and did not welcome her hiring a private investigator or seeking a blood test on her own, saying the conduct was evidence that she was seeking to stop or limit parenting time. that your ex-partner has with the child and conclude the behavior. “It is not in the best interests of the child.” He was ordered to pay $ 1,500 in court fees.
Magdalena said the non-smoking order is a small victory for her, but it cannot be enforced. Legal proceedings are ongoing; Magdalena said she does not want to prevent the boy from visiting his father, but wants the visits to be supervised.
“I have done everything I can to fight for my son, to protect him, and all that results in is paper after paper after paper saying no smoking. And I have to see my son come back stinking of smoke and tell me that ‘Daddy’s house is disgusting’. And no one is doing anything about it. “
According to a document published by Physicians For a Smoke-Free Canada, judges have been reluctant to use parental smoking habits as a deciding factor in custody disputes. But it is not uncommon for them to impose no-smoking orders as a condition of access.
Magdalena hired a private investigator to back up her claims of secondhand smoke exposure because she says her concerns have been repeatedly dismissed. He said he became suspicious when he realized his son was coming home after visiting his father “reeking” of smoke.
In April, her son had blood tests done a week after he stayed with his father. The results showed cotinine, a metabolite of nicotine, at levels of 7.5 ng / mL. Hamilton CAS later consulted two physicians: Dr. Burke Baird of McMaster University and Dr. Tarek Khalefih, who performed the blood tests. A letter from the CAS to Magdalena explained why the case was being closed. He quoted Baird as saying the results would not reach the threshold for “toxicity” in the blood, and he quoted Khalefih as saying the results are not concerning.
Magdalena denied that Khalefih said the results were not worrisome and, in fact, said that he told her otherwise. In his April letter to his GP, he says he observed a three-year-old girl with an increase in serum cotinine but no other symptoms and recommended a “counseling and education” plan.
Baird declined to discuss blood test results or talk about cotinine levels in children in general, while Khalefih could not be reached for comment.
Dr. Adam O. Goldstein, a professor of family medicine at the University of North Carolina and director of the tobacco intervention program there, has written articles comparing secondhand smoke exposure to child abuse.
Cotinine in the blood is not a major health problem on its own, but it is a measure of secondhand smoke exposure. Goldstein said that children exposed to secondhand smoke are more likely to develop asthma, upper respiratory and sinus infections and pneumonia.
In the long term, it increases the risk of chronic respiratory disease and obstructive pulmonary disease, Goldstein said. He added that children can also be affected by thirdhand smoke, which is when residual nicotine is left on interior surfaces from tobacco smoke.
A May 2021 report published in the medical journal The Lancet says that secondhand smoke is more harmful to children because they inhale twice as much dust as adults, have faster respiratory rates and narrower airways.
When asked about the 7.5 ng / ml measurement in a three-year-old, he said it would be “very concerning.”
“Ideally, you probably want to see less than five there. A level of seven would indicate that this child, particularly if it is a child who is altering who they are living with, depending on when it was measured, would indicate that the child has significant exposure. “
Goldstein said it is well established that there is no safe level of exposure to secondhand smoke and that tobacco smoke is “cancer-causing at virtually every level.”
He cited cases in the United States where courts are taking secondhand smoke more seriously, especially when exposure occurs “repeatedly and deliberately.” But he believes that child welfare agencies have a role to play if a parent is affecting the child’s health because the courts are limited to some extent when the parent is not breaking the law.
“I’d have a hard time believing they’d say it’s okay if the kid was just exposed to a little burning asbestos,” Goldstein said.
“I think it is extremely irresponsible action for a child welfare agency not to do everything in its power to eliminate a child’s exposure to secondhand smoke.”
A spokesperson for the Ontario Association of Children’s Aid Societies said: “Secondhand smoke alone is not considered a child protection problem under the Children, Youth and Family Services Act.”
But an internal document provided by the association, which lists the criteria for family intervention, describes a situation “in which a child welfare agency could interpret the presence of secondhand smoke in a home as a child protection problem.” that is, if “a child with respiratory problems (eg asthma, cystic fibrosis) living in poor air quality (eg a smoke-filled house)”.
The three-year-old was diagnosed with suspected asthma in June and is currently using two inhalers.
Tammy Law, president of the Ontario Child Protection Lawyers Association, said the issue of secondhand smoke has not come up. in parental disputes that she knows about and that does not appear to be a major issue in court.
Kaufman noted that it becomes illegal to smoke in a private residence if a child care worker is present, but there is no such protection for the child.
“The evidence is there and they wouldn’t ban it in common areas if they didn’t think it was something that could put people at risk,” Kaufman said. “I think the reason they have not made progress in developing policies for private residences is the (legal) complexity of doing so.”
“It’s an example of a gap,” added Sarah Butson, a policy analyst at the Canadian Lung Association. “So when you look at what can happen in a nursery (where smoking is not allowed) versus what can happen at home, it’s an interesting example of where children are protected.”
Magdalena, who works in childcare, said she has discussed the issue with social workers, her local MPP and health advocates who agree that the law should do more to protect children. But no one seems willing to do anything about it.
“You have an innocent child who has no say in this matter and is trapped in a house where he is exposed to smoke,” he said. “It’s amazing to me.”