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December 15, 2000

Mom agrees to butt out on trip

Parents in court: Promises not to smoke in car with child on U.S. trip

King Lee
National Post, with files from The Times Colonist

Bruce Stotesbury, The Times Colonist
Jason Arsenault talks to reporters in Victoria yesterday. Arsenault was in court regarding a custody issue with his former wife, Elizabeth Howse.

Bruce Stotesbury, The Times Colonist
Elizabeth Howse leaves the courthouse with a friend yesterday.

VICTORIA - A judge has ruled that a woman is allowed to take her seven-year-old son to Arizona for a Christmas vacation, but only after she solemnly promised yesterday that neither she nor her boyfriend will smoke in the car while the child is present.

Judge Wayne Smith, of provincial court in Victoria, allowed Elizabeth Howse to depart on vacation with her son, Dustin, without the written consent of her former common-law husband, the boy's father. Without the stipulation that Ms. Howse not smoke in front of Dustin, Jason Arsenault had refused to sign a consent form needed for his mother to take the boy out of the country.

Ms. Howse, 27, and Mr. Arsenault, 28, lived together between 1991 and 1994. Although Ms. Howse has custody of Dustin, Mr. Arsenault has guardian's rights, which means that, in order for Ms. Howse to take Dustin out of Canada, either Mr. Arsenault must sign a consent form or Ms. Howse must acquire a court order striking down the requirement for Mr. Arsenault's consent.

Ms. Howse attempted to do the latter in family court last month. The case was adjourned to yesterday, when she and her boyfriend agreed not to smoke in the car in the presence of her son.

"I'm glad. I hope she obeys the agreement," Mr. Arsenault said outside court yesterday.

The Esquimalt truckdriver insisted he is not anti-smoking -- he quit only two years ago, after smoking for 12 years -- "just against smoking around my son."

Ms. Howse, a smoker for 14 years, refused comment. Her lawyer, Leigh Freeman, had asked for a ban on publication and for the courtroom to be cleared of the media before any submissions were made. But Judge Smith rejected the request, saying the court had no such jurisdiction.

Mr. Arsenault said yesterday smoking has been an ongoing problem between him and Ms. Howse since the couple split up 6 1/2 years ago. Mr. Arsenault said they both agreed not to smoke in front of Dustin, and to smoke outside the home.

But the issue came to a boil about two months ago when Mr. Arsenault and his wife, Shelley, said they noticed the smell of smoke on Dustin's clothes. He told them Ms. Howse and her boyfriend smoked in front of him and that he "didn't like it." When the boy reportedly asked the two not to smoke in his presence, he was told it was their car and their rules applied.

Mr. Arsenault said he launched his court action because Ms. Howse refused to sign a form promising not to smoke near the boy.

Yesterday's development was the first step in what could be a contentious battle. Mr. Arsenault's lawyer, Gary Coad, has filed a petition asking the court to order that Ms. Howse stop smoking in front of Dustin altogether. The motion will be heard on Feb. 13.

The case has caught a groundswell of interest from smokers and anti-smokers across Canada.

"I think that there is now an awareness out there of the damage second-hand smoke can do that wasn't there five years ago, and this case has become the focal point for it," said Mr. Coad. "My guy's not the Grinch. He wants his son to go on the trip. We just don't want the secondhand smoke in front of the child."

"This is all about speaking for the child," Mr. Arsenault added. "Go ahead and smoke; just keep it away from the children."

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