May 29, 2014

Rights of Access Trump Right to Breastfeed

Cavannah v. Johne, 2008 CanLII 65587 (ON SC)
The Globe & Mail has today reported on an interesting case out of the Ontario Supreme Court which addresses a difficult problem: what should the court do when a mother's breastfeeding regimen interferes with the other parent's time with the child?
This issue crops up with surprising frequency. In essence, infants are moored to mothers who breastfeed, and the younger the infant is the more frequent are the feedings, and the closer the infant must remain to mum. This can make access very difficult for the other parent, who not only must see his or her time with the child broken up into two- and three-hour blocks separated by one or two days, the access often has to occur with the other parent standing by. Despite this, no one in their right mind would deny a mother the right to breastfeed an infant, which tends to leave the other parent hanging.
This, at least, is the standard form of the breastfeeding dilemma, which usually resolves itself by the time the child is weaned. On rare occasions, however, a child won't be weaned by the 6 to 24 month mark (, sometimes as a result of the mother's belief in the health benefits of long-term breastfeeding. In cases like this, the other parent's access to the child can become seriously cramped.
In Johne v. Cavannah, however, the judge found that the mother's preference for breastfeeding their 29 month old child had "a secondary impact upon [the father] in that it is used as an excuse to restrict his access." Making things worse, the mother refused to indicate when the child was going to be weaned, leaving the father in limbo.
As a result of the mother's approach, and certain provisions of Ontario's Family Law Act which equally entitles parents to custody, the judge held that the parents should move to a shared custody arrangement and that if the mother wished to continue to breastfeed, she would have to provide the father with bottles of pumped milk.
Update: 28 April 2009
A reader's comment has made me think a bit more about the implications of the Johne v. Cavannah case which deserve some additional discussion.
Fathers (this is a gender-based issue) are often quite vexed by mothers' decision to breastfeed when that decision interferes with their ability to spend time with their children. As I've already said, however, the personal inconvenience of fathers must take a backseat to mothers' reasonable decisions to breastfeed, which comes close to being a fundamental human right if it isn't one already.
Trouble comes calling when a mother continues to breastfeed a child well beyond regional weaning norms, and the father begin to wonder whether or not the mother isn't dragging things out just to prevent him from having the child over night, as opposed to pursuing a legitimate health care objective. This is the issue the court in Johne was called upon to address, but what makes Johne stand out is that the court actually concluded that the mother was intentionally delaying things to frustrate the father's time with the child.
While fathers should certainly look at Johne with hope and take succour in the knowledge that this obstruction to access can be overcome, they should not assume that mothers' right to breastfeed will be set aside for children within the usual nursing age or that it will be easy to get such an order, regardless of the child's age, without proof of the mothers' bad faith.