When parents of an infant separate or divorce, should the father’s access rights be affected (or impaired) by the fact that the mother is still breastfeeding the child?
In a Newfoundland case called Squires v. Smith, the father worked for a major oil drilling company and worked a pattern of shifts that involved three weeks on-shore, followed by three weeks off-shore. He and the mother had a child together, who was now eight months old. The parents had obtained an interim order that took this schedule into account, giving custody to the mother with generous access rights to the father.
The “fly-in-the-ointment” was this: The mother had breastfed the child since birth, and breast milk was still the main source of his nutrition, except that since six months of age, he had also been given some pureed food and infant cereal. However, the mother fully intended to continue breastfeeding him as long as possible – up to two years – and purported to follow Health Canada guidelines in this regard.
In the context of a dispute as to the father’s access to the child, the father did not dispute the benefits of breastfeeding but felt it limited his legitimate access to the child. He argued that the mother should be required to express her breastmilk and store it, which would then enable him to feed the breast milk to the child himself during his access times.
The lower court judge was asked to rule on the father’s appeal of an earlier interim access order.
After considering this rather unusual situation, the judge ruled that the mother may continue to breastfeed the infant during her parenting time, but must provide the father with pumped and stored breastmilk to use during his access time. The judge also adjusted the father’s parenting schedule, by giving him three hours of daily access while he was on-shore, plus one night of overnight access each week when the baby turns one year of age. In making this ruling, the judge said:
In addition, in deciding to make the schedules of parenting time for [the father], I have, amongst other things, considered the following: [the father] ordinarily has only three weeks onshore and this, in and of itself, limits opportunities for attachment and bonding with his son; daily parenting (usually for three hours) will therefore be ordered until [the mother] returns to the workplace …
Insofar as [the infant] being breastfed, I have also considered the following: [the infant] has been exclusively breastfed by his mother since birth and he may very well be breastfed by his mother until he is two years old. I believe, however, that [the infant’s] father should continue to build a bond with [the infant] by feeding him his mother’s stored breast milk as well as other age-appropriate nutrients. This will promote [the infant’s] best interests because it will continue and enlarge upon the attachment and bonding between father and son.
In making this order, the lower court judge relied on some previous cases which address the breastfeeding issue. Among them was the Saskatchewan decision in McDonald v. Deagnon, 2009 SKQB 154,  S.J. No. 249, where the court observed that the breastfeeding schedule for newborns up to one year of age should be protected. In Cooper v. Cooper, 2002 SKQB 151,  S.J. No. 226, the court acknowledged that feeding and sleep routines should ideally be similar in the homes of separated or divorced parents, in order to maintain stability for the child. That case also emphasized that the goal is for both parents to have frequent and broad contact with the infant so that he or she feels secure, trusting and comfortable in each relationship.
The Squires v. Smith case then went on to the Newfoundland Court of Appeal, though mainly in connection with unrelated issue (namely whether it was appropriate for the lower court judge to add a Clause 26 in the Order prohibiting the father, or anyone in his presence, from smoking or abusing illegal drugs or alcohol while he parented the child). Although two out of the three appeal judges denied permission to appeal the lower court’s interim Order, one of those two judges did comment on the part of it that related to the breastfeeding. Citing a number of key Canadian constitutional cases, the lone appeal judge wrote:
In denying leave [to appeal], I would not want to be taken as affirming the appropriateness of Clause 26 of the judge’s order. Although it was not appealed, neither would I want to be taken as affirming the appropriateness or correctness, from a constitutional perspective, of Clause 11 of the judge’s order. Clause 11 requires [the mother] to “pump, store, and provide” her breast milk “if reasonably required during [the father’s] parenting times. It is one thing if [the mother] chooses to do so, but quite another for her to be ordered to do so….
Fortunately, the mother in this case was on-side with wanting to facilitate the child’s continued breastfeeding. It would be interesting to see what the court could / would have done if she was not.
For the full text of the decisions, see:
Squires v. Smith,  N.J. no. 43; 2015 NLTD(F) 6; 2015 CarswellNfld 32 (N.L. T.D.)
Squires v. Smith, 2015 NLCA 25 (CanLII)