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

Over the next six days, the investigator monitored three addresses the child had visited, sometimes until the early hours of the morning. They noted that their subject – the child’s father – would periodically glance at his head in front of his front door and report that there was a “strong smell of cigarettes and second-hand smoke emanating from the house. subject’s residence ”when walking around the building.

Surveillance shows how far an Oakville mother has gone to try to prove that her ex-partner is exposing their three-year-old son to secondhand smoke, which she says has affected his health.

The case highlights a gray area in the legislation regarding exposure to secondhand smoke – while it is prohibited in vehicles around children, in workplaces and in common areas of shared buildings , such a rule does not exist for private households. Some, like Magdalena, say that 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 secondhand smoke exposure, and a children’s lawyer in Toronto said she was unaware of the affecting issue. the outcome of court cases.

For the past three years, Magdalena has been in conflict with the child’s father because she claims he constantly smokes around their son. (The Star does not publish his last name to protect the privacy of the child.)

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

Magdalena said the entities set up to protect the children were indifferent to her fate. She thinks that if it was a parent drug or alcohol abuse problem, it would be taken more seriously.

“Nobody cares,” she said. “I have a feeling that if it was the daughter or the 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 aren’t protected.

The Smoke-Free Ontario Act prohibits smoking in vehicles with a child, in workplaces and in common areas of shared buildings, but does not cover children in private residences. Some experts and health advocates say this needs to change.

“It’s a dilemma,” said Pamela Kaufman, assistant professor at the University of Toronto and scientist at the Ontario Tobacco Research Unit. “The Smoke-Free Ontario Act did not address smoking in private homes… (but) recognizes that there is no identified safe level of second-hand smoke. “

According to Statistics Canada’s 2019 census, 13.8% of Ontarians smoked daily or occasionally, the highest rate being among men aged 20 to 64. A report released by Doctors for a Smoke-Free Canada indicates that smoking is the leading cause of preventable death. in this country. Secondhand smoke is No. 11 and is the primary risk factor in over 3,100 deaths per year.

Magdalena and her ex-partner started dating in 2017 and lived together for about a year. During this time, they had a child before going their separate ways – Magdalena says smoking was one of the main factors and she felt it was putting their child’s health at risk.

She first complained to the Children’s Aid Society, which opened an investigation and ultimately concluded that exposure to second-hand smoke was not a child protection issue and that the father did not endanger the health of the child.

She then went to court, requesting that the child’s visits be supervised by a family member or social worker. That request was rejected, but the courts issued two orders banning the father from smoking around the child, most recently on September 15.

The judge disagreed with Magdalena’s approach and did not appreciate her hiring a private investigator or looking for blood tests herself, saying the conduct was evidence she sought to stopping or limiting the parenting time that his former partner had with the child and to conclude the behavior is “not in the best interests of the child”. She was ordered to pay $ 1,500 in court costs.

Magdalena said the smoking ban was a small victory for her, but it was not enforceable. Legal proceedings are ongoing; Magdalena said she did not want to prevent the child from visiting her father, but wanted the visits to be supervised.

“I did everything to fight for my son, to protect him, and all that resulted was paper after paper after paper saying not to smoke. And I have to watch my son come back smelling the smoke and thinking “daddy’s house is disgusting”. And no one is doing anything about it.

Judges are reluctant to use a parent’s smoking habits as a deciding factor in custody disputes, according to a document released by Physicians for a Smoke-Free Canada. But it’s not uncommon for them to impose no-smoking orders as a condition of entry.

Magdalena has hired a private investigator to substantiate her claims of secondhand smoke exposure, as she claims her concerns have been repeatedly dismissed. She said she first became suspicious when she noticed their son coming home from visits with his father who “reeked” of smoke.

In April, she had a blood test from her son a week after he stayed with his father. The results showed cotinine, a metabolite of nicotine, at levels of 7.5 ng / mL. The Hamilton CAS subsequently consulted two doctors: Dr. Burke Baird of McMaster University and Dr. Tarek Khalefih, who performed the blood tests. A letter from CAS to Magdalena explained why the case was closed. He quoted Baird as saying the results would not reach the threshold of “toxicity” in the blood, and quoted Khalefih as saying the results are not of concern.

Magdalena disputed that Khalefih said the results were not of concern and, in fact, she said he told her otherwise. In his April letter to his family doctor, he says he observed a three-year-old with an increase in cotinine serum but no other symptoms and advised a plan of “counseling and education”.

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, professor of family medicine at the University of North Carolina and director of the Tobacco Intervention Program, has written articles comparing exposure to second-hand smoke to child abuse.

Cotinine in the blood is not a major health problem per se, but it is a measure of exposure to secondhand smoke. Goldstein said 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 third-hand smoke, which is when residual nicotine is left on interior surfaces by tobacco smoke.

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

Asked about the 7.5 ng / ml measurement in a three-year-old child, he replied that it would be “very worrying”.

“Ideally, you definitely want to see less than five there. A level of seven would indicate that this child, especially if it is a changing child who they live with, depending on when you measured, it 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 on virtually every level.”

He cited cases in the United States where courts take the issue of second-hand smoke more seriously, particularly when exposure occurs “repeatedly and deliberately.” But he believes child welfare agencies have a role to play if a parent affects the health of the child, as the courts are constrained to some extent when the parent is not breaking the law.

“I would find it hard to believe they would say it doesn’t matter if the child was only exposed to a little bit of burning asbestos,” Goldstein said.

“I think it is a highly irresponsible action for a child welfare agency not to do everything in its power to eliminate secondhand smoke exposure for a child.”

A spokesperson for the Ontario Association of Children’s Aid Societies said, “Second-hand smoke per se is not considered a child protection issue under the Child Care Services Act. childhood, youth and family.

But an internal document provided by the association, listing the criteria for family intervention, describes a situation “where a child protection agency could interpret the presence of second-hand smoke in a home as a child protection problem. Ie if a child with respiratory problems (eg asthma, cystic fibrosis) who lives in poor air quality (eg 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 Association of Child Protection Lawyers, said the issue of second-hand smoke had not been raised. in parental disputes of which she is aware and does not appear to be a major problem in the courts.

Kaufman noted that it becomes illegal to smoke in a private residence if a child care worker is present, but that there is no such protection for the child.

“The evidence is there and they wouldn’t ban it in the common spaces if they didn’t think it was something that could put people at risk,” Kaufman said. “I think the reason they haven’t made progress in developing policies for private residences is the (legal) complexity of doing so.”

“This is an example of a gap,” added Sarah Butson, policy analyst at the Canadian Lung Association. “So when you look at what can happen in a day care center (where smoking is prohibited) versus what can happen at home, it’s an interesting example of child protection. “

Magdalena, who works in child care herself, said she had 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 ready to do anything about it.

“You have an innocent child who has no say in this matter and he’s stuck in a house where he’s exposed to smoke,” she said. “It’s mind-blowing to me.”