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Old 05-03-2011, 10:41 AM
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Default Custody and Access Decision-Making and the Breastfeeding Child: Cavannah v. Johne

I came across good info in regards of Custody/Access Breastfeeding .
Unfortunately I did not find it when I needed it but I think it good to post it so may be will help someone...

TITLE/TITRE: Custody and Access Decision-Making and the Breastfeeding Child: Cavannah v. Johne, [2008] O.J. No. 5027 (Sup. Ct.)

AUTHOR/AUTEUR: Case Comment by Fiona Kelly

SOURCE/SOURCE: Canadian Journal of Family Law / Revue canadienne de droit familial

CITED/CITÉ: (2009) 25 Can. J. Fam. L. 133 - 153/ (2009) 25 Rev. Can. D. Fam. 133 - 153

1 As an increasing number of fathers seek access to their very young children, how the court addresses the breastfeeding relationship between mother and child has become a critical factor in the best interests of the child analysis. Some breastfeeding mothers oppose independent and/or lengthy periods of access by fathers in the early months or first year of a child's life, arguing that access in the mothers' absence or long periods away from the mother will disrupt the breastfeeding relationship to the detriment of the child. Fathers in these disputes typically accuse mothers of using breastfeeding as a weapon to deny them access.1 This argument often resonates with judges, who seem largely ignorant of the logistics of breastfeeding; World Health Organization, UNICEF and the Canadian Pediatric Society recommendations with regard to both exclusive and extended breastfeeding;2 the potential effects of pumping on milk supply; the often negative impact of forced "weaning"; and the established health benefits of breastfeeding beyond one year.

2 Mothers can, and some possibly do, use breastfeeding as a weapon in access disputes. The pertinent issue, however, is what is in the best interests of the child. Any presumption that independent access be-tween baby and father should trump breastfeeding is a disturbing one. While no such presumption appears to exist in Canadian law during the child's infancy, in cases of extended breastfeeding judges are more than happy to order that breastfeeding cease in order to facilitate greater access for fathers. This comment ad-dresses how courts should deal with access to a breastfeeding child, using the recent Ontario Superior Court decision of Cavannah v. Johne3 as a starting point. The comment considers how the courts should approach the issue, addressing the challenges raised by both breastfeeding infants as well as toddlers who are engaged in extended breastfeeding. Ultimately, this paper argues that in order to protect the breastfeeding child and ensure some consistency in the law, the court might best address the issue via both judicial education and the inclusion of breastfeeding as an element in the best interests of the child test.

Cavannah v. Johne: Courts and the Breastfeeding Child

3 The case of Cavannah v. Johne, decided in December of 2008, is by no means the first custody and access case involving a breastfeeding child. However, it garnered more attention than most, appearing in several newspapers including the front page of the Globe and Mail. Replete with breastfeeding puns,4 the newspaper articles were largely critical of the mother who wished to limit access to the status quo - overnight alternate weekends and some midweek access - so she could continue to regularly breastfeed her two-year-old daughter. The father sought joint physical custody, including several nights in a row of overnight access. While the dispute addressed in court arose when the child was two, disagreement between the parents over breastfeeding dated back to the child's infancy. The father had first requested overnight access when the child was a week old, at a time when breastfeeding was both frequent and exclusive.

4 In many ways, Cavannah represents a growing number of custody and access disputes over children born in the context of a brief and tenuous relationship between the parents. Carl Cavannah and Jennifer Johne met at a wedding in August 2005. By mid-October of that year, Jennifer discovered she was pregnant. Carl raised the possibility of marriage, but Jennifer rejected the proposal. Communication broke down soon after and the couple stopped dating in November 2005. As Justice Ingram notes on several occasions, "the parties did not and do not know each other well".5 While the relationship between the parents ended, both took the pregnancy very seriously. Carl was informed of the birth, visited the child, Kai, when she was one day old and the parents signed her birth records together. Jennifer also invited Carl to add a name to the baby, which he did. The first sign of disagreement arose early on when Carl requested independent overnight access. Jennifer refused the access because Kai, who was less than a month old, was being breastfed every two to three hours. To support her decision, she sought expert advice from Doctor Jack Newman, a pediatrician who operates the Newman Breastfeeding Clinic and Institute. He discouraged any overnight access until the child was two years of age.6 Adopting a disappointing choice of words, Justice Ingram refers to this situation as "inconvenient" for Carl, particularly given that his visits with Kai involve a two hour commute each way.7

5 In December 2006, Carl reported Jennifer to the Children's Aid Society ("CAS"), alleging that there were "potential hazards" in her home. The CAS family services worker dismissed the complaint immediately, stat-ing, "This letter confirms that the allegations to the Society concerning risks posed to Kai in your home have not been verified. Indeed, you appear to demonstrate a particularly natural and wholesome parenting ap-proach that strives for optimal health. The file will now be closed."8 Justice Ingram describes this incident as "regrettable". Following a case conference in April 2007, Jennifer reluctantly agreed to increase access to include overnight visits after the child reached one year of age. These visits continued consistently until the case made its way to court. In November 2007, Carl moved to the same area as Jennifer so he could be closer to Kai.

6 The dispute before the court arose when Carl sought joint custody of Kai, who was then two years old, under the Children's Family Law Reform Act ("CLRA").9 Preferring the existing access arrangement, Jennifer opposed the application on the basis that it would disrupt Kai's breastfeeding.

7 Justice Ingram begins his decision by stating that pursuant to s. 20(1) of the CLRA, the mother and the father are equally entitled to custody of the child, something that he accuses Jennifer of having "not accept-ed".10 He then goes on to list the various factors the court must consider when determining the best interests of the child under the CLRA, adding to the list the "maximum contact" principle derived from s. 16(10) of the Divorce Act. Justice Ingram states that this principle has long been recognized as a proper consideration in the best interests test, even if it is not explicitly included within the CLRA.11

8 Having cited the relevant legislative provisions, Justice Ingram expressly deals with the breastfeeding issue. He commends Carl for his "patience" in dealing with Jennifer's desire to breastfeed, noting that it has necessarily restricted his time with Kai.12 Justice Ingram rejects Jennifer's argument that the status quo meets both Carl's need for access as well as Kai's need to breastfeed, arguing that "the breastfeeding is having a secondary impact upon Carl in that it is used to restrict his access."13 The judge understands the situation to be exacerbated by Jennifer being "unwilling to give a timetable as to when breastfeeding will end".14 Concluding that given Kai's age, "the time has come for Jen to give greater consideration for the relationship between Kai and Carl [than the breastfeeding relationship]," Justice Ingram awards Carl joint custody.15 The final order states that Kai will reside with Carl from Thursday to Sunday. Jennifer is offered the possibility of pumping breast milk and having Carl feed it to Kai during this time. In press statements following the case, Jennifer notes that the "mechanics" of a breast pump are completely different, posing problems to the ongoing breastfeeding relationship.16

9 The decision in Cavannah v. Johne highlights a number of challenging issues for the courts. Perhaps most pertinently, such cases require the courts to assess a father's equal entitlement to custody in situations where that entitlement imposes upon a child's breastfeeding relationship with his or her mother. In such a situation, the court must balance the benefits of the breastfeeding relationship to the child, the impact of alternatives such as pumping, as well as the father's equal entitlement to custody or access. In Cavannah, Justice Ingram clearly favoured the father's right to custody, though this view was couched in the language of what was best for the child. In Justice Ingram's view, the benefit Kai would receive from spending roughly equal time with her father outweighed any benefits she might have been getting from breastfeeding and the associated relationship with her mother. In fact, it is fairly obvious that Justice Ingram perceives extended breastfeeding to be of no benefit at all. Several inaccurate assertions - that there are no health benefits to breastfeeding beyond two years17 and that mother-directed weaning is appropriate18 - are used to support his claim that expanding what was already a substantial relationship between father and child was more important than continuing the child's breastfeeding relationship with her mother.
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Old 05-03-2011, 10:44 AM
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10 While Cavannah addressed the more challenging issue of breastfeeding and custody determinations in the context of an extended breastfeeding relationship - a practice that remains fairly uncommon in Canada - the issue also arises when the child is being exclusively breastfed or is still an infant. The next section will address how courts deal with breastfeeding when the child is less than 12 months of age.

The Best Interests of the Breastfeeding Infant

11 The World Health Organization,19 the Canadian Paediatric Society20 and UNICEF21 recommend that chil-dren should be breastfed for up to two years and beyond.22 The American Academy of Pediatrics advises breastfeeding for at least one year, and thereafter for "as long as both mother and child desire".23 All four organizations recommend exclusive breastfeeding for the first six months of a child's life. The main reason breastfeeding is promoted is because it provides health benefits to the baby. Breastfed babies are healthier, both physically and emotionally. The antibodies present in breast milk protect newborns against pathogens, viruses and bacteria, resulting in fewer diseases amongst breastfed babies and toddlers.24 When they do get sick, breastfed babies and toddlers heal more quickly.25 Additional research suggests that breastfed babies have higher IQs and more developed fine motor and language skills,26 as well as lower rates of asthma and allergies.27 While the health benefits to the baby tend to dominate the public debate surrounding breastfeeding, studies have also shown the practice increases attachment between child and mother;28 psychological and emotional benefits for the child including a sense of security, continuity and independence;29 health benefits for the mother;30 and improved sleep for the child.31 In other words, breastfeeding is about much more than nourishment. It is often recommended, and frequently used, as a means by which to settle a baby, put a baby to sleep, and comfort a baby during times of distress. In fact, when an infant or toddler is sick, agitated or distressed, he or she will often seek out the breast.32

12 A breastfeeding child under the age of six months typically nurses every two to three hours. Each feed-ing can take anywhere between 20 and 60 minutes to complete. The effect of this schedule is that an exclu-sively breastfed infant is fed between eight and twelve times a day, sometimes in "cluster" patterns,33 leaving very little time during which a child could be away from the mother and still maintain a breastfeeding relationship. While breast pumps and bottle-feeding are frequently touted by fathers and judges as an alternative to the breast, they are often unsatisfactory solutions. Introducing a bottle to a baby, even if filled with breast milk and not formula, is generally discouraged in the early months of life because of what is sometimes referred to as "nipple confusion".34 The sucking motion required to feed from a bottle requires completely different mouth and tongue motions and swallowing skills than breastfeeding. Most infants find feeding from a bottle easier, and when exposed to a bottle at too young an age will often reject the breast in favour of the bottle. Furthermore, it can be frustrating or even fruitless to expect a young baby to learn both methods and move easily between them depending on whose care he or she is in. Bottle feeding, because it requires pumping, can also reduce the mother's milk supply. While pumping is a viable alternative for many mothers, some find the mechanics of the equipment challenging and might ultimately produce less milk. Maintaining breast milk is a function of supply and demand. If there is decreased demand because the pump is not as effective as the baby, milk supply can diminish. The long-term effect of this can be an end to milk supply and the premature cessation of breastfeeding. Finally, pumping and bottle-feeding cannot replicate the emotional bond of breastfeeding, particularly in situations where the baby seeks the breast because of distress, fatigue or sickness. In such circumstances, a bottle cannot provide the same benefits. Even when the baby is calm and well, breastfeeding experts cite the uniqueness of the skin-to-skin contact provided by breastfeeding as surpassing anything that can be offered by bottle-feeding.35 So while the pump and bottle might be an alternative for older children and mothers for whom pumping has no effect on milk supply and who are willing to forgo the bonding that accompanies breastfeeding, it is not a viable option for all mothers.

13 Beyond the typical six month period of exclusive breastfeeding, the breastfed child has greater flexibility. Able to eat solid foods, the baby can be out of his or her mother's care for several hours at a time. However, as with bottle-feeding, there can be repercussions of such a practice for both the baby and the mother. Even with a baby who is eating solids, breastfeeding can remain a central part of his or her eating habits. Many babies breastfeed immediately before or after consuming solids, creating a routine that does not look dissimilar to the habits of an exclusively breastfed child. Not having the breast available at meal times, usually every three to four hours, can be very distressing for these children. While bottle-feeding provides a viable alternative for some older infants, others will continue to seek the comfort of the breast. A second concern relates to the mother's milk supply. While children of six months can survive on solids and formula, prolonged periods of time without nursing can reduce the mother's milk supply, leading to weaning earlier than the mother intends and is healthy for the child.

14 Because of the unique conditions imposed by breastfeeding, particularly exclusive breastfeeding in the first six months of a child's life, independent access by a non-resident father to a breastfed child can pose significant challenges. While access is easily facilitated with the mother present, independent access is much more difficult to arrange. Such situations are likely to increase as more men are encouraged to seek access to, or even joint custody of, children born as a result of brief relationships that end before the child is born or in the early months of the child's life. While Cavannah speaks to the more complex situation of a breastfeeding toddler, a number of Canadian cases have already addressed access in the context of a breastfeeding infant.

15 In all identified cases where the father sought access to an exclusively breastfed infant, he accused the mother of using breastfeeding to deny him his legal right to access.36 For example, in Myderwyck v. Ball,37 the father referred to the exclusive breastfeeding of his newborn daughter as an "unfair encroachment of demand nursing on his [access] time".38 Similarly, in Rowley v. Rowley39 the father alleged that "there were concerns that the wife may be planning to extend breastfeeding in order to thwart the court process".40 At the time the allegation was made the child was less than six months old. Despite the accusations in these cases, none of the judges are willing to expressly jeopardize the breastfeeding relationship. For example, in Myderwyck, Justice Hardman states that the father's "expectation that the mother should express milk during a regular feeding schedule to accommodate an expansion of his access time showed a complete disregard for the impact on the mother and child."41 The judge goes on to note that the father, who was already enjoying some access, "seems to lack any insight or empathy in dealing with the mother's circumstances".42 Similarly, in B.G.H.S. v. P.W.,43 the court treats the father's application for increased access to his four month old child as "inappropriate" given the child's frequent breastfeeding schedule. The court states:

Anything over an hour and half in terms of visits for this baby at this time would mean that the baby would go hungry past this period since the mother is breastfeeding the baby, and will continue to do so in the near future. It would be inappropriate and unnec-essary for the baby to go hungry simply to accommodate access visits that are at this point more for the father's benefit than they are for the baby's benefit.44

16 Each of these cases represents a reasoned response to the unique dynamics of exclusive infant breastfeeding. The decision-making appears straightforward given that the child's sole source of nourishment is breast milk. However, in each case the judge presumes that breastfeeding will likely soon cease, certainly within a year, at which point the father's access can increase. In Rowley v. Rowley, Justice Lemon specifically notes that if the mother is "unreasonable in the future" with regard to breastfeeding and access, the court can step in.45 Perhaps the message to be taken from these decisions is that courts will generally support infant breastfeeding, particularly when breast milk is the exclusive source of nourishment, but that these mothers and children are on a limited timetable. Breastfeeding must cease before it becomes "unreasonable". As the next section demonstrates, the "unreasonable" label is not infrequently assigned to mothers who engage in extended breastfeeding.
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Old 05-03-2011, 10:45 AM
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The Breastfeeding Toddler

17 While most people are aware of the benefits of breastfeeding for infants, far less is known about the documented benefits of extended breastfeeding, particularly in North America where the practice is shrouded in secrecy. Extended breastfeeding refers, at least in North America, to breastfeeding beyond 12 months of age. As Doctor Ruth Lawrence of the American Academy of Pediatrics notes, it is not known how many North American women breastfeed beyond 12 months, largely because the societal taboo around breastfeeding toddlers tends to keep the practice hidden within the home.46 Outside of North America, extended breastfeeding is common with the average age of weaning worldwide being between four and five years.47 As noted above, the Canadian Paediatric Society, the World Health Organization and UNICEF each recommend breastfeeding for "up to two years and beyond". Significantly, each organization, as well as the American Academy of Pediatrics, recommends that weaning should be child, and not mother, directed. In other words, breastfeeding should cease when the child no longer requests the breast. Forced weaning can cause emotional distress to the child.

18 The research supporting extended breastfeeding is extensive. Not only do the already established health benefits of breastfeeding continue with older children, the breast milk actually changes to accommo-date the needs of a toddler as opposed to an infant. For example, the immunological benefits of breast milk increase during the second and third years of nursing, reducing the child's susceptibility to hundreds of infections and diseases, including pneumonia, strep throat, influenza, meningitis and measles, as well as many childhood cancers such as leukemia.48 In addition, the fat and energy content of breast milk increases after the first year and varies in the next two years to accommodate the toddler's developing system.49 Extended breastfeeding also provides security, comfort and attachment for the toddler in the same way as it does for the infant. Toddlers often nurse in the morning or before bed, and in situations of stress or discomfort. Contrary to suggestions that such behaviour creates a dependent or spoiled child,50 research shows that breastfed toddlers exert greater independence because they enjoy deep-seated security and attachment.51

19 While extended breastfeeding is fairly uncommon in Canada, the mothers who practice it do so for sound, empirically-based reasons. Yet, as Jennifer Johne found, judges rarely have any conception of the benefits of extended breastfeeding, treating it as an odd behaviour that should be brought to an end. In fact, it is not uncommon in such cases for judges, as Justice Ingram did in Cavannah, to suggest or even order a mother to wean the child.52 For example, in one of the few other extended breastfeeding cases in Canada,53 Fletcher v. Fletcher, Justice Quinn ordered that the mother begin weaning her daughter, holding that "while the mother may have an honestly held and well-intentioned theory on breastfeeding ... this breastfeeding must come to an end at some point."54 The mother had documentation from a breastfeeding expert indicating that breastfeeding is recommended for at least a year "with no upper limit". However, because the three-year-old child had been breastfed for "two years beyond the minimum recommended", the judge saw no reason for it to continue, accusing the mother of treating the child as an "appendage".55 Justice Quinn ultimately ordered that the mother cease breastfeeding within four months, after which the child would have overnight access with her father. That a judge was willing to actually order that a mother cease breastfeeding, rather than ask her to accommodate the access arrangement via pumping or nursing only when the child was in her care, is revealing of a complete lack of understanding around extended breastfeeding. Like Justice Ingram in Cavannah, Justice Quinn presumes that extended breastfeeding is a function solely of the mother's needs and desire, and thus finds it is perfectly appropriate for the mother to simply end breastfeeding or provide a "timetable" for weaning.56 Such an approach ignores recommendations about child-directed weaning, not to mention the ongoing health and emotional benefits to the child of the breastfeeding itself. As noted earlier, some children experience a great deal of trauma when forced to wean, particularly when the breastfeeding relationship has come to serve as a significant source of comfort and security.

20 While pumping, provided it does not decrease milk supply, could make the custody and access ar-rangements ordered in Cavannah and Fletcher physically workable,57 the willingness of the courts to order that mothers offer a timetable for weaning or cease breastfeeding altogether is a disturbing trend. The deci-sions seem to suggest that a father's right to access should trump a child's breastfeeding relationship with his or her mother, despite the established physical and emotional benefits of extended breastfeeding. The mothers in Cavannah and Fletcher are painted as intransigent and selfish, with the judges presuming that the mother's commitment to breastfeeding rests entirely on her desire to spite the child's father. While a mother who opposes access could use extended breastfeeding as a weapon, in these cases, this assumption is supported only by the judge's lack of knowledge about the practice. Rather than treating the mother's decision respectfully, the judges indicate a complete lack of understanding of why they might continue breastfeeding beyond one year and the benefits it will provide the child. By ordering the mothers to cease breastfeeding altogether, the judges demonstrate a disturbing attitude towards both breastfeeding and a mother's autonomy to make decisions about her child's health.
Conclusion

21 Cases such as Cavannah and Fletcher suggest that judicial education around breastfeeding, particularly extended breastfeeding, is needed. As the practice grows in North America and as more fathers seek access to very young children, judges are going to be faced with an increasing number of these cases. The current state of knowledge amongst judges appears to be fairly low; education will no doubt improve this. While breastfeeding should not be used to preclude father access, there should be more attention focused on how courts might accommodate the breastfeeding relationship, including families that continue breastfeeding beyond infancy. For example, access could take place within the mother's home, pumped breast milk could be used for older children where appropriate or, where a toddler only nurses at specific times, access could be arranged around that schedule. Beyond a requirement to accommodate, judges should be discouraged, if not prohibited, from ordering that breastfeeding cease.

22 Another possible solution is to include a reference to breastfeeding within the best interests of the child test. While no province in Canada has yet taken such a step, a number of jurisdictions within the United States address the issue in their family law legislation. For example, courts in Maine must consider the breastfeeding of a child under the age of one year in determination of what custody arrangement is in the best interests of the child.58 When determining "parenting time", Michigan courts must take into consideration whether a child younger than six months is breastfed, or if one younger than a year "receives substantial nutrition" from breastfeeding.59 Finally, the best interests test in Utah, which provides for a minimum visitation schedule for children under the age of five, allows that schedule to be varied in situations where "the lack of reasonable alternatives to the needs of a nursing child" require it.60 While the Michigan and Maine statutes focus on the breastfeeding infant, there is no reason that such a provision could not be extended to include older children who continue to breastfeed, as the Utah statute appears to do. These statutes not only require that courts address the important role breastfeeding plays in a child's development, they also promote the practice itself, something which is of even greater importance in the United States where breastfeeding rates remain extraordinarily low.61

23 Due to the increasing number of custody and access decisions in which breastfeeding is addressed, including a reference to breastfeeding in the best interests of the child test seems like an appropriate step to take. In fact, it might be of even greater importance at this particular time in history given the increased emphasis on both maximum contact and joint custody by Canadian courts. The risk under the current approach is that a father's right to maximum contact will always trump the breastfeeding relationship, as it did in both Cavannah and Fletcher. There may be cases where such a result is appropriate, particularly if the breastfeeding can be accommodated during access, but courts should not assume that extended breastfeeding is always less important than increased father access or that breastfeeding should cease altogether.

* * *
RE AUTHOR:-- Fiona Kelly, BA (Melb), LLB(Hons) (Melb), LLM (UBC); PhD (UBC). Assistant Professor, Faculty of Law, University of British Columbia.
* * *
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Old 05-03-2011, 10:47 AM
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QL Update: 20091130
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1 See e.g. Rowley v. Rowley, [2008] O.J. No. 5342 (Sup. Ct.) [Rowley]; Myderwyck v. Ball, [2000] O.J. No. 3968 (Ct. J.) [Myderwyck].

2 "Extended breastfeeding" typically refers, at least in Canada, to breastfeeding beyond 12 months of age. It is unknown how many women breastfeed beyond 12 months. However, Dr. Ruth Lawrence of the American Academy of Pediatrics and co-author of the AAP's most recent Breastfeeding Guidelines notes that many women do not admit to extended breastfeeding because of societal taboos in North America around the issue. In contrast to North America, the average age of weaning worldwide is four to five years of age. Ruth A. Lawrence & Robert M. Lawrence, Breastfeeding: A Guide of the Medical Profession (Saint Louis: Mosby, 1999); American Academy of Pediatrics, "Policy Statement: Breastfeeding and the Use of Human Milk" (2005) 115(2) Pediatrics 496; Michael Kramer & Ritsuko Kakuma, The Optimal Duration of Exclusive Breastfeeding: A Systematic Review (Geneva: World Health Organization, 2002).

3 Cavannah v. Johne, [2008] O.J. No. 5027 (Sup. Ct.) [Cavannah].

4 See e.g. Kirk Makin, "Judge Rules Mom is Milking her Parental Rights with Breastfeeding Defence" Globe and Mail (27 April 2009), A1, A4.

5 Cavannah, supra note 3 at para. 16.

6 Ibid. at para. 22.

7 Ibid. at para. 21.

8 Ibid. at para. 23.

9 R.S.O. 1990, c. C.12 [CLRA].

10 Cavannah, supra note 3 at para. 41.

11 Ibid. at para. 37.

12 Ibid. at para. 40.

13 Cavannah, supra note 3 at para. 42.

14 Ibid.

15 Ibid.

16 Kenyon Wallace, "Mom Denies She Breastfed to Spite Ex" Toronto Star (28 April 2009).

17 See discussion at 147-148, below.

18 Both the World Health Organization and American Academy of Pediatrics recommend that weaning should be directed by the child and not the mother.

19 Kramer & Kakuma, supra note 2; American Academy of Pediatrics, supra note 2.

20 Canadian Paediatric Society, Nutrition of Healthy Term Infants: Statement of the Joint Working Group: Canadian Paediatric Society, Dieticians of Canada and Health Canada (Ottawa: Minister of Public Works and Government Services, 2005).

21 UNICEF, "Innocenti Declaration on the Protection, Promotion and Support of Breastfeeding" (1990) (revised 2005), online: UNICEF <UNICEF - Nutrition - Introduction index_24807.html>.

22 There are many reasons why a mother might not breastfeed and the arguments presented in this comment are not intended to shame or condemn a mother who chooses not to breastfeed or who is unable to do so. A woman may be unable to breastfeed because of an existing illness or past breast cancer or because her child was adopted or conceived via surrogacy. Gay men and single fathers are obviously also unable to breastfeed. In addition, many women are forced to give up or "choose" to cease breastfeeding because they have to return to the paid workforce out of economic necessity. While breastfeeding is of enormous benefit to the child, mothers (as well as gay parents) who are unable to breastfeed should not be condemned for either their choices or circumstances.

23 American Academy of Pediatrics, supra note 2.

24 Margit Hamosh, "Bioactive Factors in Human Milk" (2001) 48(1) Pediatric Clinics of North America 69; J. K. Welsh & J. T. May, "Anti-Infective Properties of Breast Milk" (1979) 94(1) Journal of Pediatrics 1.

25 E. E. Gulick, "The Effects of Breast-feeding on Toddler Health" (1986) 12(1) Pediatric Health 51.

26 L. J. Horwood & D. M. Ferguson, "Breastfeeding and Later Cognitive and Academic Outcomes" (1998) 101(1) Pediatrics 9; D.L. Johnson, "Breast feeding and Children's Intelligence" (1996) 79 Psychological Reports 1179.

27 Welsh & May, supra note 24.

28 Jack Newman & Teresa Pitman, The Ultimate Breastfeeding Book of Answers: The Most Comprehensive Problem-Solving Guide to Breastfeeding from the Foremost Expert in North America (Roseville, CA: Prima Publishing, 2000). Dr. Newman, whose recommendations the mother cited in Cavannah v. Johne, started the first hospital-based breastfeeding clinic in Canada in 1984 at Toronto's Hospital for Sick Children. He has been a consultant with UNICEF and has published widely in academic journal on the topic of breastfeeding.

29 Ibid. Newman notes that the breastfed toddler is "more independent in the long run because his [sic] independence comes from a deep-seated security that comes from breastfeeding." Thus, breastfeeding is not just a source of nutrition, but also of comfort, support and security.

30 The duration of breastfeeding is linked to lowered risks of ovarian, uterine and breast cancer. Women who breastfeed for 24 months have a 25% lower risk of premenopausal breast cancer. The length of breastfeeding is also directly linked to a lower risk of diabetes: one study found that for every year of lactation, women with a birth in the prior 15 years reduced their risk of Type 2 diabetes by two percent. Kim N. Danforth et al., "Breastfeeding and Risk of Ovarian Cancer in Two Prospective Cohorts" (2007) 18(5) Cancer Causes Control 517; K. E. Brock et al., "Sexual, Reproductive and Contraceptive Risk Factors for Carcinoma-in-Situ of the Uterine Cervix in Sydney" (1989) 150(3) Medical Journal of Australia 125; P. A. Newcomb et al., "Lactation and a Reduced Risk of Premenopausal Breast Cancer" (1994) 330(2) New England Journal of Medicine 81; H. Furberg et al., "Lactation and Breast Cancer Risks" (1999) 28(3) International Journal of Epidemiology 396.

31 Newman & Pitman, supra note 28.

32 Academy of Breastfeeding Medicine, "Support for Breastfeeding is Crucial for Infant Health in the Aftermath of Natural Disasters" (September 2005), online: California Department of Public Health ; Lifestyles and Health Unit, Infant Feeding in Emergencies: A Guide for Mothers (Regional Office for Europe, Copenhagen: World Health Organization 1997).

33 "Cluster feeding", which is common during increased growth periods, refers to situations where the infant demands the breast several times in the space of two to three hours.

34 Jack Newman, "Breastfeeding: Starting Out Right" in Newman & Pitman, supra note 28.

35 Ibid.

36 Cases were identified via Quicklaw. Search terms included "breastfeeding and custody" and "breastfeeding and access".

37 Myderwyck, supra note 1.

38 Ibid. at para. 13.

39 Rowley, supra note 1.

40 Ibid. at para. 9. The father in Rowley ultimately succeeds in increasing his access hours.

41 Myderwyck, supra note 1 at para. 13.

42 Ibid.

43 B.G.H.S. v. P.W, [2002] A.J. No. 1277 (Q.B.). The father was already exercising access three times a week for one and half hours at a time. He sought three hour visits in his home three times a week.

44 Ibid. at para. 49.

45 Rowley, supra note 1 at para. 9.

46 Lawrence & Lawrence, supra note 2.

47 Katherine A. Dettwyler, "A Time to Wean" in Katherine A. Dettwyler & Patricia Stuart-Macadam, eds, Breastfeeding: Biocultural Perspectives (Piscataway, NJ: Aldine, 1995) 712. Outside of North America, weaning is typically child and not mother initiated.

48 Welsh & May, supra note 24.

49 Dror Mandel et al., "Fat and Energy Contents of Expressed Human Breast Milk in Prolonged Lactation" (2005) 116(3) Pediatrics 432. M. Karra et al., "Changes in Specific Nutrients in Breast Milk During Extended Lactation" (1986) 43(4) American Journal of Clinical Nutrition 495. Karra found that energy, protein, calcium, vitamin A, folate, vitamin B12 and vitamin C all fluctuated in the second and third years of lactation to accommodate the specific health needs of children aged two to three years.

50 For example, a father in a U.S. access case argued that breastfeeding past infancy was "detrimental to the child's development". Hoplamazian v. Hoplamazian, 740 So. 2d 1100 (Ala. App. 1999).

51 Newman & Pitman, supra note 28.

52 See e.g. Fletcher v. Fletcher, [2003] O.J. No. 1568 (Sup. Ct.) [Fletcher].

53 Extended breastfeeding cases in the United States demonstrate a similar trend: Skunk v. Walker, 589 A. 2d 1303 (Md. Ct. Spec. App. 1991); Friendshuh v. Headlough, 504 N.W. 2d. 104 (S.D. 1993); In the Marriage of Holcomb, 888 P. 2d 1046 (Or. Ct. App. 1995).

54 Fletcher, supra note 52 at para. 5 [emphasis added].

55 Ibid.

56 The judges' treatment of the mother's behaviour as self-interested or even self-indulgent is reflective of an increasing trend in custody and access law whereby mothers who do not facilitate access with fathers are presumed, no matter what the actual reason for opposing access, to be doing so for purely selfish reasons. See e.g. Susan Boyd, "Demonizing Mothers: Fathers' Rights Discourses in Child Custody Law Reform Processes" (2004) 6(1) Journal of the Association for Research on Mothering 52; Helen Rhoades, "The 'No Contact Mother': Reconstructions of Motherhood in the Era of the 'New Father'" (2002) 16(1) Int'l J.L. Pol'y & Fam. 71.

57 There is, of course, a difference between "workable" and "optimal" arrangements. Pumping might make the orders in Fletcher and Cavannah physically workable, but would not address the well documented emotional content of the breastfeeding relationship. See e.g. Walsh & May, supra note 24; Newman & Pitman, supra note 28.

58 Domestic Relations, M.R.S., Title 19-A, s. 1653(3)(P)

59 Child Custody Act of 1970, M.C.L.S. s. 722.27a.

60 Utah Code Ann. s. 30-3-35.5, 1(n).
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Old 05-03-2011, 10:48 AM
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61 The United States has some of the lowest breastfeeding rates in the world. While 70% of American women attempt breastfeeding in hospital, only 36% are doing any breastfeeding at six months. A mere 14% of those are exclusively breastfeeding. Centre for Disease Control, "Breastfeeding Among U.S. Children Born 1999-2005", CDC National Immunization Survey (2005), online: Department of Health and Human Services .
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Old 05-03-2011, 11:32 AM
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WorkingDad, I realize that your intent is to be helpful, but you are posting the entire COPYRIGHTED article. This is a violation of the law and can get the owners of the message board in trouble (and yourself if you care.)

The proper way to use copyrighted material is to post a small portion, no more than 10%, you add your own editorial comment (this is part of the qualifications of "Fair Use") and then add a link to the original article. This protects you, protects the message board, and is helpful to readers.

If you were not clear, the article is Copyright (c) 2009 Canadian Journal of Family Law, which is visible if you google the article and check.
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Old 05-03-2011, 11:39 AM
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Quote:
Originally Posted by Mess View Post
WorkingDad, I realize that your intent is to be helpful, but you are posting the entire COPYRIGHTED article. This is a violation of the law and can get the owners of the message board in trouble (and yourself if you care.)

The proper way to use copyrighted material is to post a small portion, no more than 10%, you add your own editorial comment (this is part of the qualifications of "Fair Use") and then add a link to the original article. This protects you, protects the message board, and is helpful to readers.

If you were not clear, the article is Copyright (c) 2009 Canadian Journal of Family Law, which is visible if you google the article and check.
Ohhhhhhhhhhh
I actually was thinking about that but did not find info how properly to deal with it...

thank you for pointing out Mess - will not happened again... Probably better to delete post.

Another things what I would like to clear how you can use thouse articles in your court materials? Like factum for example. Reffering to it. How that copyright law work here?
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Old 05-03-2011, 11:52 AM
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Using the material in court does not involve copyright, this is outside the copyright law, you are not publishing it. Another example would be if you were teaching a course, you could bring an article into class and read it to students, but you would violating copyright by copying it and handing it out for free.

For a factum, you should state what your point is, how it is relevent to your case. Then refer to the article by name. Then include a small exerpt from the article in quotes that backs up your point. Then include the article as part of your submission. Be aware the judge does not want to read the whole article, much less 4 or 5 of them, but may use them to back up your point. The idea would be that the other side has the opportunity to read the article and refute your argument if they are able, or they can challenge the accuracy of the article, or the qualifications of the writer etc.

Case by case, judge by judge, point by point, there is no way to predict if an article will be accepted as relevent by a judge, you can only do your best to present the material. The better your presentation, the more likely the judge will see it as relevent.

You improve your odds if you write well, you present the relevence in a brief, compact way so that the judge will see how it applies without having to read pages and pages first. The relevence has to be the first thing the judge sees or they won't read any further.
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Old 05-03-2011, 11:55 AM
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Quote:
Originally Posted by Mess View Post
Using the material in court does not involve copyright, this is outside the copyright law, you are not publishing it. Another example would be if you were teaching a course, you could bring an article into class and read it to students, but you would violating copyright by copying it and handing it out for free.

For a factum, you should state what your point is, how it is relevent to your case. Then refer to the article by name. Then include a small exerpt from the article in quotes that backs up your point. Then include the article as part of your submission. Be aware the judge does not want to read the whole article, much less 4 or 5 of them, but may use them to back up your point. The idea would be that the other side has the opportunity to read the article and refute your argument if they are able, or they can challenge the accuracy of the article, or the qualifications of the writer etc.

Case by case, judge by judge, point by point, there is no way to predict if an article will be accepted as relevent by a judge, you can only do your best to present the material. The better your presentation, the more likely the judge will see it as relevent.

You improve your odds if you write well, you present the relevence in a brief, compact way so that the judge will see how it applies without having to read pages and pages first. The relevence has to be the first thing the judge sees or they won't read any further.
Ok
thank you Mess...

So how to delete my posts with articles? I will redo it as you pointing out so people will know about article and will get it from journal if needed ...
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