This is an interesting decision from Justice Caspers of the Ontario Court of Justice. This case discusses the possibility of a change in custody because of one parent’s smoking habits.

In Pootoolal v. Ferraro, there was a previous interim order which required that the mother not smoke in the presence of the child and that she would not expose the child to second-hand smoke.

The father was aware that the mother was violating this order. On one occasion, the mother sent an email to the father indicating that she did not have to answer to him and she would essentially do what she liked with respect to that part of the court order.

During the contempt motion, Justice Caspers was not happy about the breach of the court order and the way in which the mother treated the breach.

In this case the child in question was one year old, vulnerable, and had special needs. The Court found that the child’s health and well-being were being jeopardized by the mother’s behaviour.

There was no doubt that the mother was in contempt of the court order. The interesting question was what to do about it. Justice Caspers decided to change physical custody. The judge ordered joint custody, but that the primary residence would be with the father, with the mother to have alternate weekend access.

There is some concern that because this was the first contempt motion and there may have been a better way of protecting the child and achieving compliance with the court order.

 However, this case is an example of when a change in custody was ordered because of a parent’s smoking habits.