Melody Rodger

There is near universal agreement by health professionals that the exclusive breastfeeding of an infant for the first 6 months of his or her life is important for the infant’s growth, development and overall health.[1] However, many parents will testify to the fact that establishing or maintaining a breastfeeding relationship between mother and infant is not always possible. One of the matters than can hinder or interrupt breastfeeding is the breakup of the family unit (or one where a “family” as such, never existed prior to the infant’s birth.) Another thorny issue is the benefits of “extended” breastfeeding and how to balance the benefits with the need of the child to have a relationship with the non-breastfeeding parent.

So how have Alberta courts approached the issue of parenting arrangements, which inevitably mean the child being away from the mother for periods of time, where the infant is breastfeeding?

In the Alberta Court of Appeal case of MB v JH 2015 ABCA 412, the Court dealt with the mother’s application for a stay of a previous Order respecting the father’s access to the parties’ 9-month-old son. The child had primarily been in his mother’s care and was still breast-feeding. The chambers judge had allowed two 24-hour overnight access sessions with the father, which would progress to two and then three day sessions over the following months.

The mother applied for a stay pending the appeal. The mother’s appeal argument was largely centered on the interruption of the breastfeeding relationship if such access was to occur. She testified that she had trouble pumping milk, that she had trouble maintaining her milk supply and that the child fed only reluctantly from a bottle. The father testified that the baby was happy during the visits and had “readily eaten from a bottle.” (para.5.) While the Court does not expressly state it, it is likely that they were balancing the competing factors of encouraging a relationship between the father and the infant, and the benefits of the breastfeeding and existing attachment between the mother and the infant. Considering all the evidence, along with the best interests of the child, the Court in this case refused the mother’s application for a stay.

The case of BGHS v PW 2002 ABQB 914 dealt with an application by the father for access to his 4-month-old baby. In this case, Lee J. found that “anything over an hour and a half in terms of visits for this baby at this time would mean that the baby would [go] hungry past this time period since the mother is breastfeeding the baby and will continue to do so for the near future. It would be inappropriate and unnecessary 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.”

A notable difference between the two cases is that there were serious concerns about the father’s parenting ability and accommodations in the second case, which did not appear in the first case. It is interesting to consider whether the outcome in the first case would have been different if the infant was 6 months or under, given that at 9 months he or she was likely eating some solid food in addition to breast milk.  It appears that Alberta courts might assign more weight to a breastfeeding relationship in the first 6 months of an infant’s life when balancing the factors that determine what is in a child’s best interests.

 

[1] The World Health Organization’s infant feeding recommendation: http://www.who.int/nutrition/topics/infantfeeding_recommendation/en/ 

Statistics Canada: Breastfeeding trends in Canada: http://www.statcan.gc.ca/pub/82-624-x/2013001/article/11879-eng.htm