BREASTFEEDING UPDATE – NO LONGER AN OVERNIGHT PARENTING TIME (ACCESS) BLOCKAGE

We have previously written on our site and our blog about breastfeeding.  Although we have always been strong advocates for infants enjoying extensive time with their fathers, including overnights, we have in the past also taken a somewhat conservative and cautious approach when it came to overnight parenting time or access to dads with very young infants.

While Holomey v. Hillis (Ontario Superior Court of Justice, 2020) deals with an 18-month-old, there are strong indications in this case that even with younger ones it is still possible to secure overnight parenting time where mom breastfeeds.

Key Facts in this case:

• 18-month-old daughter.
• Dad said – the more I push for time, the more mom resists.
• Dad complained that mom’s gatekeeping started even during the time that the parents resided together in Wyoming, Ontario. Mom had left unilaterally for London, Ontario with the infant.
• Mom said – he’s a barely competent parent; he was abusive during the relationship; I’m breastfeeding so overnights won’t work.

Justice George’s take on the evidence:

• No evidence to support Mom’s allegations.
• Mom’s allegations just show how far she will go to disparage Dad.
• Mom’s resistance to increased parenting time was “punitive”. “While she has clearly convinced herself that she is the only one who can adequately for the child, that the Respondent 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.”
• Mom’s complaints rang hallow

Justice George’s views on the law:

• Not aware of any cases that stand for the proposition that breastfeeding automatically overwhelms any other relevant factors.
• Other cases suggest that early and regular bonding with the father might take precedence.
• It is important to maximize overnight access for young children.
• Overnights should be of sufficient duration and frequency to permit the relationship to flourish.

Justice George’s views on social science literature:

• A judge can take judicial notice of social science literature. Here the judge relied on the work of Joan Kelly and Michael Lamb:
  • Such unnecessarily restrictive and prescriptive guidelines were not based on child development research and, thus, reflected an outdated view of parent-child relationships.
  • Research and experience with infant daycare, early preschool, and other stable caretaking arrangements indicate that infants and toddlers readily adapt to such transitions and also sleep well, once familiarized.
  • Evening and overnight periods provide opportunities for crucial social interactions and nurturing activities, including bathing, soothing hurts and anxieties, bedtime rituals, comforting in the middle of the night, and the reassurance and security of snuggling in the morning after awakening, that 1 to 2 hour visits cannot provide. These everyday activities promote and maintain trust and confidence in the parents while deepening and strengthening child-parent attachments. [citations omitted]

Justice George’s conclusions:

• “The fact she breastfeeds the child cannot rule the day. Furthermore, the fact she thinks she is a better parent than the Respondent is not dispositive. 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.” [our emphasis added]
• “For clarity, I have made this decision fully aware of the Applicant’s, and her doctor’s, views on breastfeeding. It should be apparent that I find this to be subordinate to the fostering of the child’s relationship with the Respondent.” [our emphasis added]

This judge did not give Dad a great deal of time.  Neither did he allow for a gradual predetermined increase in parenting time.  But the judge left the door open for Dad to come back later once he had more parenting experience.

This case, if adopted by other Superior Court judges, can serve as a template and precedent (on the right facts).  It is important to get appropriate legal advice when you are contemplating bringing a case for increased parenting time to infants and toddlers.