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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.