Judge orders NO Smoking in parents' homes or cars

Webster v. Webster, 2006 SKQB 386 (CanLII)

Date: 2006-08-18
Docket: DIV 417/03 JCR
Parallel citations: (2006), 284 Sask. R. 151
URL: http://www.canlii.org/en/sk/skqb/doc/2006/2006skqb386/2006skqb386.html

Children's Law Act, 1997, S.S., 1997, c. C-8.2
Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.)

            QUEEN’S BENCH FOR SASKATCHEWAN

            Citation: 2006 SKQB 386
Date:    2006 08 18
Docket:            D.I.V. No. 417/2003
Judicial Centre: Regina, Family Law Division

BETWEEN:

WANDA MARY WEBSTER
            PETITIONER
            - and -

BRIAN LARRY WEBSTER

            RESPONDENT

Counsel:
Ian D. McKay, Q.C.   for the petitioner
R. Bradley Hunter         for the respondent

FIAT   SANDOMIRSKY J.
August 18, 2006

[13]      The children’s mother had been their primary caregiver not only when she resided in Indian Head but also at Fort St. James. This is an interim application which appears to have all the earmarks of proceeding to at least a pre-trial if not a trial. In an interim disposition of custody pending pre-trial or trial, the court examines the status quo as it existed at and prior to the date of application. If the children are managing or even flourishing under the status quo, the court should not interfere with the parenting arrangements as they exist. There is no excuse for Harlin Fry to punish Shelanie with a belt. The children’s concern about secondhand smoke, while legitimate, is not so compelling a complaint as to disturb the status quo. That can be addressed effectively with this interim order and that is what I intend to do.

[14]      On balance, the children are managing and it would appear that their immediate best interests are being served by being returned to their mother’s care and to resume their schooling at Fort St. James. I direct that the respondent turn the children over to the petitioner no later than 3:00 p.m. Saturday, August 19, 2006.

[15]      While the children are under the primary care of the petitioner, she shall not permit the children to be exposed to secondhand smoke. Specifically, there shall be no smoking within the family home at Fort St. James nor the family vehicle. This eliminates the children’s primary concern. Second, there shall be no use of corporal punishment to discipline any of the children. All further discipline of the children pending further order of this Court, shall be administered by the petitioner and not by her consort, Harlin Fry. This effectively addresses Shelanie’s second reason for being hesitant to return to her mother’s care.

[17]      The petitioner and respondent were represented very ably by two of the most senior and respected lawyers in the Regina Family Bar. They understand the law and what is necessary to move this case forward in a meaningful fashion.

                                                                     J.
            N. S. Sandomirsky

Ontario Family Court Rules No Smoking Allowed in Family Home or Cars

The Canadian Children's Rights Council has seen numerous cases like this in most provinces or territories.

October 7, 2002

[16] Ms. LeClair smoked ordinary cigarettes, used marihuana and drank alcoholic beverages prior to and following becoming pregnant. Mr. Miles did not smoke tobacco products, but admitted that he had used marihuana when he was seventeen to nineteen years old. He has asthma and in particular was opposed to the Respondent continuing to smoke during her pregnancy and after their son was born.

[17] Ms. LeClair’s family smoke tobacco products. The evidence indicates that persons in that household simply plan to avoid smoking in the same room as Christien and they think that is good enough. Katherine Miles, the Applicant’s mother, has been to the LeClair residence and has observed tar film from tobacco products on the windows. She noted this on the day of the baby’s christening when there was a social gathering at the residence of Ms. LeClair’s parents. She concluded that there was a considerable amount of smoking in that residence. Although Ms. LeClair testified that she does not smoke in the presence of her son, she is caught on video in Exhibit 17 driving a car with a cigarette in her mouth and her son in the car in March 2001.

[23] There is a court order of January 8, 2001 prohibiting the child being exposed to tobacco smoke in a room. Ms. LeClair agreed that she would consider a motor vehicle in the same category as a room for the smoking prohibition. More ..