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Old 05-03-2011, 09:47 AM
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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).