By Jenny Kirshen of the Gene C. Colman Family Law Centre
Our Associate Counsel, Jenny Kirshen, published the blog post below on 6 May 2018. I wish to add a few additional thoughts.
Overnight access to young infants, particularly those who breast feed, presents the father with considerable challenges. The case law establishes that the older the infant, the more likely it is that the father will obtain some degree of overnight parenting time.
The challenges related to breast feeding take place within the wider context of whether or not there should be blanket restrictions against fathers enjoying overnight parenting time with their infants and toddlers. The thrust of the standard establishment coterie of social workers, lawyers and psychologists approaches overnight parenting time for infants with extreme caution. Dr. Richard Warshak, an eminent psychologist, is much more liberal in his approach.
I have referred to Dr. Warshak’s important work in numerous places, including in court. In fact, in one of our cases he came to Ontario to give expert evidence. In my newsletter entitled “Equal Shared Parenting Thought of the Day”, I have reproduced a number of appropriate quotations and summaries from Dr. Warshak’s work. You can click on the link in the previous sentence and then click on the following numbers: #9, #17, and #29 to #38. Dr. Warshak is an inspiration. [See the photograph of Dr. Warshak, Brian Ludmer and me, here. You need to scroll down that page a bit.]
To evaluate your case for securing meaningful parenting time with your infant or toddler, consider securing the compassionate, experienced and proactive approach of a lawyer who has for years demonstrated his commitment to the equal shared parenting movement through his organizational leadership, writings, public speaking and vigorous court advocacy. Arrange an in-depth consultation today with Gene C. Colman (personally or via video link).
Now here is Ms Kirshen’s blog post:
At the Gene C. Colman Family Law Centre we are very attuned to the struggles that Dads go through in attempting to gain parenting time access rights to their children (although we would prefer to characterize this as children’s rights to having a relationship with their fathers). Especially when the child is very young, Dads experience exquisite challenges when faced with the issue of the breastfeeding bond. The exceptional circumstances of breastfeeding pose unique challenges for Dads when attempting to secure contact (get access) to their infant children. At the Gene. C. Colman Family Law Centre we understand these unique challenges and the corresponding struggles that Dads face in the family law system.
When it comes to breastfeeding, some Moms argue that extended access for Dad would interrupt the child’s feeding schedule and interfere with the important mother-child breastfeeding relationship. Sometimes, especially with children under six months, this can be true. On the other hand, there are cases where Mom uses breastfeeding to simply mask access denial. In these cases, Mom stresses the importance of breast feeding as an excuse to keep a child from the father.
In the courts, the best interests of the child are paramount. This can mean a tricky balance between breastfeeding’s constraints and the benefits of maximum contact with both parents, among other best interests factors. The general trend in the case law shows that in the first few months of a child’s life, when breast milk is the child’s only source of nourishment the courts will support a strict breastfeeding schedule, even where it inhibits Dad’s access. The trends in the cases can be further broken down into three age categories:
- Birth to Six Months: During this period infants usually feed every two to three hours, typically resulting in eight to twelve feeds per day. Here, we see judges generally awarding access for Dad around the child’s breastfeeding schedule, even if this means shorter visits for Dad. We see Dads getting shorter but more frequent visits when the child is under six months.
- Six Months to One Year: During this period most infants are introduced to additional sources of nutrition such as infant cereals and purees. We see judges attempting to balance the competing interests of both parents, recognizing the continued importance of breastfeeding, the availability of nutritional alternatives, and the importance of maximum contact with both parents. By age six months we see more and more courts imposing the importance of a father’s bonding with his child as at least equal to breastfeeding.
- Over One Year Old: During this period most children are eating more solid foods, resembling meals, for nutrition. The courts are less accommodating to breastfeeding schedules beyond one year.
Here, are some cases that address the issue of access to infants and toddlers when Mom is breastfeeding. Remember though that every case is different. How these cases might influence your personal situation is a matter that requires knowledgeable legal assistance. The point here is that breastfeeding should not be a barrier for Dads to spend frequent quality time with their young children:
|Age of Child||Case and Citation||Decision|
|4 months||S.(B.G.H.) v. W.(P.), 2002 CarswellAlta 1299, 2002 ABQB 914,  A.J. No. 1277 (Alta Q.B.)||· Dad was seeing the child three times a week for one and a half hours. He proposed increasing his time to three, three-hour visits per week.
· The court was concerned about the father’s parenting skills.
· Dad awarded parenting time of one and a half hours, three times a week to accommodate breastfeeding schedule.
· The court ordered a review of the access in one year.
|5 months||Rowley v. Rowley, 2008 CarswellOnt 7886,  O.J. No. 5342 (Ont. S.C.J.)||· Dad believed that Mom was using breastfeeding as an excuse to prevent access.
· Dad sought visits of four to five hours in length.
· Dad granted access every Tuesday and Thursday from 4:30 p.m. to 6:00 p.m. and every Sunday from 12:00 p.m. to 2:00 p.m. plus a fourth visit each week as agreed upon by the parents.
· Judge comments that two visits per week are too few and the child needs to spend more time with his father.
· The judge leaves the case open to a further court order if Mom used breastfeeding to prevent Dad’s access.
|5 months||McDonald v. Deagnon 2009 CarswellSask 271, 2009 SKQB 154,  S.J. No. 249 (Sask. Q.B.)||· Court found that frequent access was preferable to longer access.
· Dad awarded two-hours of parenting time, three times a week, between feedings.
· Mom was asked to adjust her breastfeeding schedule to accommodate Dad’s access.
|6 months||Myderwyck v. Ball,  O.J. No.3968||· Dad was enjoying some access but for very short periods of time due to the baby’s on-demand breastfeeding.
· Dad felt that Mom was using breastfeeding to deny his access.
· Dad granted interim access on Sundays from 12:30 p.m. to 3:00 p.m. and 6:00 p.m. to 8:30 p.m., and Thursdays from 6:00 p.m. to 8:30 p.m. with further access as agreed upon by the parents.
· The court refused Dad’s request that Mom express breast milk to accommodate Dad having increased parenting time.
|8 months||Squires v. Smith, 2015 CarswellNfld 143, 2015 NLCA 25. 367 Nfld. & P.E.I.R. 77, 59 R.F.L. (7th) 273 (Nfld & Lab C.A.)||· Dad worked offshore in a three weeks on/three weeks off rotation. He sought overnight access during his weeks onshore.
· Child was breastfed exclusively until 6 months, but at 6 months had been given cereals and purees.
· Mom intended to breastfeed for as long as possible and cited Health Canada’s endorsement of breastfeeding up to age two or longer.
· Dad awarded parenting time of three hours every day during his weeks onshore until the child is one year old and overnight access weekly once the child turns one.
· Mom was to provide expressed milk to Dad, if required, during his parenting schedule, to promote the son’s best interests.
· Court sought to balance parenting time for Dad and breastfeeding relationship between Mom and infant.
|15 months||Zubaid-Ahmad v. Butt, 2017 CarswellOnt 7701, 2017 ONSC 3156, 98 R.F.L. (7th) 190||· The court found that breastfeeding is a significant factor to be considered when determining parenting time.
· In this case, the court was not persuaded that breastfeeding should affect the amount of parenting time Dad should have.
· Court found that the Mom was exaggerating breastfeeding as a tool to deny Dad parenting time.
· Court found that it was in the child’s best interest to increase parenting time with the father.
· Dad granted parenting time every Thursday at 9:00 a.m. to Friday at 3:00 p.m. and Sunday 9:00 a.m. to Monday at 7:00 p.m.
|2 years||Cavannah v. Johne, 2008 CarswellOnt 7455,  O.J. No. 5027, 64 R.F.L. (6th) 203 (Ont. S.C.J.)||· At the time of the Application, the child was living with Mom. Dad had midweek visits but only one overnight, every two weeks.
· Mom wanted to continue breastfeeding past the age of two.
· Court decided that the maximum contact principle and the Dad’s bonding with the child supersedes the Mom’s desire to breastfeed beyond age two.
· Despite the status quo, Dad was awarded time sharing as four days per week with mother and three days per week with father, with schedule reversed during school summer vacation once child reached school age.
|2.5 years||Parkes v. Zayachowski, 2005 CarswellOnt 1233, 2005 ONCJ 106,  O.J. No. 1215||· The parents had been in court over access issues since the child was one month old.
· Breastfeeding had been at odds with access until the child was over eighteen-months old.
· Despite the court finding that the father was inflexible, stubborn, and only focused on his own needs, court awarded Dad more parenting time.
· Parenting time for Dad on alternating weekends from Saturday at 9:00 a.m. to Sunday at 5:00 p.m.
· After five weeks, parenting time for Dad to increase to alternating weekends from Thursday at 5:00 p.m. to Monday at 5:00 p.m. (four overnights), plus one weekday evening during the alternate week, plus a nightly phone call.
|4 years||S.(T.)) v. T (A.V.), 2008 CarswellAlta 353, 2008 ABQB 185,  A.J. No. 293, 438 A.R. 113, 53 R.F.L. (6th) 368 (Alta Q.B.)||· Application by Dad for sole custody and primary residence.
· Extremely high conflict case. The parties had been in court since the child was less than one year old.
· Throughout the proceedings Mom continuously used breastfeeding as an excuse to alienate Dad and block his access.
· Mom insisted that the child had to be breastfed until age three.
· Court found that the distance and high conflict between parties did not permit joint custody.
· Dad was awarded primary residence and decision making for the child.
· Court concluded that breastfeeding was being used as a ploy to prevent Dad’s access.
At our website:
Marie Gordon, “Infants and Toddlers: An Update of Canadian Case Law on Post-Separation Parenting Arrangements”, National Judicial Institute Family Law Seminar, Toronto, Ontario, February 2010, online judicial library [likely not easily available]
Dr. Fiona Kelly, “Custody and Access Decision-Making and the Breastfeeding Child: Cavannah v. Johne”, Canadian Journal of Family Law, 2009, 25 Can. J. Fam. L. 133 [can be purchased at https://home.heinonline.org/]