Should second-hand smoke be grounds for children’s aid intervention?

This mother thinks so, but judges have been reluctant to use a parent’s smoking habits as a deciding factor in custody disputes.

The private investigator waited patiently outside a Hamilton Tim Hortons, covertly observing the arrival and departure of an adult and child in a tinted SUV.

Over the next six days, the investigator would surveil three addresses the child attended, sometimes into the early morning hours. They would note that their subject — the child’s father — would periodically peek his head outside his front door and reported that there was a “strong cigarette smell and secondhand smoke emanating from the subject’s residence” when walking around the building.

The surveillance shows the lengths to which an Oakville mother has gone in trying to prove that her former partner is exposing their three-year-old son to secondhand smoke, which she said has affected his health.

The case highlights a grey area in legislation when it comes to second-hand smoke exposure — while it’s prohibited in vehicles around children, in workplaces and in common areas of shared buildings there is no such rule for private households. Some, like Magdalena, say this should change, while one medical expert who spoke to the Star compared second-hand smoke exposure to child abuse.

But child welfare agencies have shown reluctance to get involved in parental disputes over secondhand smoke exposure and a child lawyer in Toronto said she’s unaware of the issue affecting the outcome of court cases.

For three years, Magdalena has been in a dispute with the child’s father because she alleges he is constantly smoking around their son. (The Star is not publishing her last name to protect the child’s privacy.)

The three-year-old’s father told the Star he did not want to comment, but denied that he smokes around the child.

Magdalena said the entities set up to protect children have been indifferent to her plight. She believes if this was an issue of a parent abusing drugs or alcohol, it would be taken more seriously.

“Nobody cares,” she said. “I feel like if this was a judge’s daughter or son, things would be different.”

Magdalena argues a home should be the safest place for a child, but when it comes to second-hand smoke, a private home is actually one of the only places 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 health experts and advocates say that needs to change.

“It is 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 smoking in private residences … (but) recognizes that there’s no identified safe level of second-hand smoke.”

As of the 2019 Statistics Canada census, 13.8 per cent of Ontarians smoked daily or occasionally, with the highest rate among males between 20 and 64. A report published by Physicians for a SmokeFree Canada says that smoking is the leading cause of preventable death in this country. Second-hand smoke is No. 11 and is the main risk factor in more than 3,100 deaths annually.

Magdalena and her former partner started dating in 2017 and lived together for about a year. During that time they had a child before separating — Magdalena says the smoking was one of the primary factors and that she felt he was putting their kid’s health at risk.

She first complained to the Children’s Aid Society, which opened an investigation and ultimately concluded that second-hand smoke exposure is not a child protection concern and that the father was not putting the child’s health at risk.

She then went to court, requesting that the child’s visits be supervised by a family member or care worker. That request was rejected, but courts have issued two orders for the father to not smoke around the child, most recently on Sept. 15.

The judge disagreed with Magdalena’s approach and did not look kindly upon her hiring a private investigator or seeking blood work on her own, saying the conduct was evidence she was seeking to stop or limit the parenting time her former partner has with the child and concluding the behaviour is “not in the best interests of the child.”

She was ordered to pay $1,500 in court fees.

Magdalena said the no-smoking order is a small victory for her, but it’s not enforceable. Court proceedings are ongoing; Magdalena said she doesn’t want to stop the child from visiting his father, but wants the visits supervised.

“I’ve done everything 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 watch my son coming back reeking of smoke and saying to me that ‘Daddy’s home is yucky.’ And no one’s doing anything about it.”

According to a document published by Physicians For a SmokeFree Canada, judges have been reluctant to use a parent’s smoking habits as a deciding factor in custody disputes. But it’s 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 second-hand smoke exposure because she says her concerns have been repeatedly dismissed. She said she first grew suspicious when she noticed their son was coming home from visits with dad “reeking” of smoke.

In April, she had blood work taken from her son one 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 doctors: Dr. Burke Baird at McMaster University and Dr. Tarek Khalefih, who conducted the blood work. A CAS letter to Magdalena explained why the case was being closed. It cited Baird saying the results would not meet the threshold of “toxicity” in the blood, and cited Khalefih saying the results are not concerning.

Magdalena disputed that Khalefih said the results were not concerning and in fact, she said he told her the opposite. In his April letter to her family physician, he says he observed a three-year-old with increased serum of cotinine but no other symptoms and advised a plan for “advice & education.”

Baird declined to discuss the blood work results or speak about cotinine levels in children broadly, while Khalefih could not be reached for comment.

Dr. Adam O. Goldstein, a professor of family medicine at the University of North Carolina and the director of the tobacco intervention program there, has written papers comparing second-hand smoke exposure to child abuse.

Cotinine in the blood is not a major health concern on its own, but is a measure of second-hand smoke exposure. Goldstein said children exposed to second-hand smoke are more likely to develop asthma, upper respiratory and sinus infections, and pneumonia.

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 third-hand smoke, which is when residual nicotine is left on indoor surfaces from tobacco smoke.

A May 2021 report published in the medical journal The Lancet says second-hand smoke is more harmful to children because they inhale double the amount of dust compared to adults, have faster respiratory rates and narrower airways.

When asked about the measure of 7.5 ng/ml in a three-year-old child, he said it would be “very concerning.”

“Ideally, you certainly want to see less than five there. A level of seven would indicate that this child, particularly if it is a child that is altering who they’re living with, depending on when you measured, it would indicate that child has some significant exposure.”

Goldstein said it’s well established that there is no safe level of exposure to second-hand smoke and that tobacco smoke is “cancer causing at virtually all levels.”

He cited cases in the United States where courts are taking the issue of second-hand smoke more seriously, especially when exposure happens “repeatedly and purposefully.”

But he believes child welfare agencies have a role to play if a parent is affecting the child’s health because the courts are constrained to some extent when the parent is not breaking the law.

“I’d have a hard time believing that they would say it’s OK if the child was only exposed to a little bit of burning asbestos,” Goldstein said.

“I think it’s a highly irresponsible action for a child welfare agency not to do everything in their power to eliminate second-hand smoke exposure for a child.”

A spokesperson for the Ontario Association of Children’s Aid Societies said: “Second-hand smoke on its own is not considered a child protection concern based on the Child, Youth and Family Services Act.”

But an internal document provided by the association, listing criteria for family intervention, does outline a situation “where a child welfare agency might interpret the presence of second-hand smoke in a home to be a child protection concern,” namely if “a child with respiratory problems (e.g. asthma, cystic fibrosis) who lives in poor air quality (e.g. smoked filled home).”

The three-year-old was diagnosed with suspected asthma in June and he currently uses two inhalers.

Tammy Law, president of the Ontario Association of Child Protection Lawyers, said the issue of second-hand smoke has not come up in parental disputes she is aware of and that it does not seem to be a major issue in the courts.

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 be banning 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 haven’t moved forward with developing policies for private residences is the (legal) complexity of doing it.”

“It’s an example of a gap,” added Sarah Butson, a policy analyst with the Canadian Lung Association. “So when you look at what can happen at a daycare (where smoking isn’t allowed) versus what can happen at home, it’s an interesting example of where children are protected.”

Magdalena, who herself works in child care, said she has discussed the issue with social workers, her local MPP and health advocates who agree 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 he’s stuck in a home where he’s exposed to smoke,” she said. “It’s mindblowing to me.”

I’d have a hard time believing that they would say it’s OK if the child was only exposed to a little bit of burning asbestos.

DR. ADAM O. GOLDSTEIN PROFESSOR OF FAMILY MEDICINE