MacLean Family Law Group's new Kelowna Office is Very Busy
We just enjoyed a recent success for our client- the father of a breastfed 10 month old son- who he had been provided restricted contact prior to our involvement on his behalf. Within only a few weeks of being hired to represent him in the Calgary Registry of the Alberta Court of Queen’s Bench we had obtained an Order for shared week on week off custody after a brief phase in period.
In a recent case before the Court of Queen’s Bench in Calgary, Alberta, Mr. MacLean and Mr. Witzman were successful in obtaining a week on/week off shared care arrangement for a ten month old nursing child. It was arranged that the mother could pump breast milk that can be frozen as necessary in order to facilitate meaningful access with our client, the father. This decision follows a growing line of cases in which shared care and overnight visits of infant children who were still breastfeeding are ordered.
According to s. 16(8) of the Divorce Act, the court must, in deciding the appropriate access for a child give paramount consideration the best interest of the child. Section 16(10), known as the “maximum contact rule” states that a child should have as much contact with each parent as is consistent with their best interests. This section has been interpreted broadly in Young v. Young (1993), 84 B.C.L.R. (2d) 1 (S.C.C.) where the Court of Appeal held that “contact” means “real communication, … the opportunity to know each other well and to appreciate each other as individuals.” Mr. MacLean was proud to be the successful counsel for Ms. Young in what is recognized as Canada’s leading case on custody access and guardianship.
Social science evidence supports this position, as it is often stated that children benefit from having meaningful bonds with both parents. Joan Kelly and Michael Lamb in “Using Child Development Research to Make Appropriate Custody and Access Decisions for Young Children” state “the evening and overnight periods (like extended days with nap times) with nonresidential parents are especially important psychologically not only for infants but for toddlers and young children as well … These everyday activities promote and maintain trust and confidence in the parents while deepening and strengthening child-parent attachments.”
If, as the legislation and social science indicate, it is in the best interest of the child to have meaningful contact with both parents, including overnights or extended visits, how do we address the needs of breastfeeding children? Many mothers argue that a breastfeeding child cannot be away from them for an extended period of time, and while they may have the best of intentions, often breastfeeding becomes a barrier to meaningful access with the father. The courts are increasingly recognizing that shared care arrangements can occur even with young, breastfeeding children.
In the case of T.S. v. A.V.T., 2008 ABQB 185 the court found it appropriate for the father to be have primary residence of the almost one year old child because the mother and mother’s family thwarted father’s attempts at relationship with the child. It was found that breastfeeding had been used as an excuse to deny access or unnecessarily restrict visits to father.
In two other B.C. cases, K.V. v. T.E. [1997] B.C.J. No. 3081; Schloegl v. McCroary [2008] B.C.J. No. 2443, overnight access was granted despite the fact that the infant child was still breastfeeding. In these cases overnight access was order on a gradually increasing basis, and did not automatically begin with a 50/50 shared time order, to allow the child to adjust.
There are also cases that find a child has reached a sufficient age or stage of development and they should no longer be breastfeeding, such as occurred in the Ontario case of Fletcher v. Fletcher [2003] O.J. No. 1568. Here the judge ordered that the mother wean the child, who was nearly three years old, in order to facilitate more appropriate access. While such an order may appear controversial to some, the World Health Organization recommends breastfeeding, if possible, as the exclusive form of nutrition for the first six months and then a combination of breastfeeding and solid foods from six to twenty-four months. If a party wished to argue for continued breastfeeding after the age of two years, at the detriment of access to the other party, they may need medical evidence to justify their argument.
If your child is being denied meaningful access under the pretense that they cannot be away from their mother because they are breastfeeding call ANY our 4 office across BC to speak with one of our lawyers well versed on this topic or call our toll free child custody hotline at 1-877-602-9900.
We want people to know that active, focused and quality involvement coupled with meaningful access and or shared custody will likely lead to an outstanding result for your children’s development.
By Joey Perpick Summer Articled Student
1.877.602.9900
