Parenting Time & Decision Making

Breastfeeding Mother “Cannot Rule the Day” in Allocating Parenting Time 

Written by Russell Alexander / (905) 655-6335

We live in a time when we recognize the presence of outdated gender roles and stereotypes. The social mores of the 1950s are long gone:  We no longer expect the fathers to automatically be the breadwinners, and the mothers to stay home and raise the children.  Instead, from the contemporary perspective of providing a loving and caring upbringing for children, fathers are acknowledged as having an equal role to play.

But there is at least one thing that only mothers can do naturally:  Breastfeed an infant.  And in an interesting decision, the Ontario court has confirmed that when it comes to allocating parenting time, the mere fact that a mother breastfeeds an infant “cannot rule the day”.  

This was the upshot of the decision in Holomey v. Hills. The parents were separated, and the father wanted a court order giving him increased parenting time with the child.  He proposed a rotation that included two-day visits (including overnights), in accord with his work schedule.  He also accused the mother of developing an inappropriate connection with the child after birth, and of trying to cut him out.  The court explained the father’s position: 

According to the [father], after the child’s birth the [mother] became quick to anger and frustration, would routinely refuse the [father’s] offers of assistance, and at one point began to limit his time with the child altogether.  He says this is why the [mother} was responsible for most parenting responsibilities before separation.  He indicates that the [mother] flat out refused his offers and effectively prevented him from spending any time with the child, independent from her.  He believes the conflict in their relationship was a direct result of his efforts to spend more time with the child, to which the [mother] would invariably become defensive and argumentative.  Despite this breakdown, and notwithstanding the [mother’s] resistance, he deposes that he had (and has) a strong bond of love and affection with the child and that, prior to separation he still found time to play with the child and change and bathe her. 

The father clarified that both before and after separation, he attempted to be more active in the child’s life, but met resistance from the mother at every turn.  He acknowledged that the child was currently being breastfed, but argued that – as important as that fact was – it must be balanced with her right to have a meaningful relationship with him.

The mother saw things differently:  She said the father did not assist with the child’s day-to-day care, and in her view was incapable of caring for a child properly.  She was – and had always been – the child’s primary caregiver, and she felt that especially in light of her continued breastfeeding (which she and the father agreed to), it was too soon to expand the father’s access and to allow overnight visits to take place.

Against this background, the court considered whether to increase the father’s access.  It quickly denounced the mother’s “overblown” assessment that the father was incapable of caring for the child, and found she was willing to go to great lengths to disparage him.  The court said:

To my mind, the [mother’s] resistance to any increase at all appears to be, for whatever reason, punitive.  While she has clearly convinced herself that she is the only one who can adequately for the child, that the [father] is incapable of doing so, and that there can be no disruption to the current breastfeeding schedule, there is just no other way to explain or characterize her staunch intractable position.  I appreciate the child is being breastfed – which is a factor I must consider (and weigh against the need to foster a loving relationship between the child and [father]) – but the [mother’s] complaints otherwise ring hollow.  On the breastfeeding issue specifically, I am aware of no case that stands for the proposition that it should overwhelm any other relevant factor.  It is a factor, but one amongst many. 

Next, the court concluded that it made sense to order joint custody in this case – but with a defined parenting schedule that would give the parents sufficient resolution without elevating one’s position over the other.  There was case precedent to suggest that even for very young children, overnight visits away from the primary caregiver can still be feasible from a developmental standpoint in the right circumstances. 

Finally the court admonished the mother, telling her to immediately start adjusting her thinking about the father’s role. Her personal opinions about his parenting capability did not determine the issue, nor did the mere fact she was still breastfeeding. Those factors were subordinate to the father’s right to have a meaningful relationship with the child. The court said:

For the sake of the child she must immediately begin to recognize the value in her having a full and loving relationship with her father, which cannot even start to grow and develop until the child spends more, and higher quality time, with him.  …  [T]here is simply no need to delay the start of this process.  In fact, it is essential that it begin now, as I get the distinct impression that once the child is no longer breastfed the [mother] will simply advance yet another reason to limit the [father’s] time with her.  

 In other words, I agree with the [father] that the child’s best interests demand that her time with the [father] be increased, right now, and that he have at least some overnight visits.

The court made an order that gave the mother primary care, and the father would have the child twice a week – consisting of a one-day visit and one overnight visit.

Full text of the decision: Holomey v. Hillis, 2020 ONSC 6299 (CanLII)

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About the author

Russell Alexander

Russell Alexander is the Founder & Senior Partner of Russell Alexander Collaborative Family Lawyers.