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Old 05-03-2011, 09:44 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.