Gary Joseph | Jan 2023

This article was originally published by The Lawyer’s Daily (www.thelawyersdaily.ca), part of LexisNexis Canada Inc.

As with most family law disputes, respect is due to the competing views of both parties. No more so than with parenting disputes. For years debate has raged over appropriate parenting time for the non-primary parent of an infant. Within this debate issues arise over breastfeeding, childcare, adequate facilities (for example a crib), availability and overall safety concerns. My own experience in raising four children (with some limited help from my wife ... lol) alerts me to the vulnerability of infants.

One of the most emotionally charged issues in parenting time disputes involving an infant centres on breastfeeding. There is a plethora of medical end social writings on the importance of breastfeeding to the child and the mother. In the family law world, the issue has been thoroughly canvassed in many articles including Fiona Kelly's article published in the Canadian Journal of Family Law, 2009 “Custody and Access Decision Making and the Breastfeeding Child.”

Judges have, of course, wrestled with this issue in innumerable cases. I particularly draw your attention to the very recent decision of Justice Brian Dubé in Pelkey v. Henley, 2022 ONSC 6477. In that case the father sought an expansion of parenting time with respect to a 16-month-old child who was being breastfed by his mother (the responding party on the motion). As noted in the decision, mother was "an impressive mother” who spent a great deal of time researching how to raise a healthy and happy child. Father, who lived in another city, was from a different racial background and was anxious to spend more quality time with the child, introduce him to his paternal cultural background and to his extended family. The mother's proposal to permit the child to visit with his father in the father's city so long as the child was returned every couple of hours was dismissed as impractical even though the residences were only about a 20-minute drive apart.

Regardless of whether I agree with the decision I find Justice Brian Dubé has written a respectful and sensitive analysis of the competing issues, finally determining that while breastfeeding "is very important”, of "even greater importance ...  is the development of a deeper, stronger and more comprehensive bond with his father.” The order was made expanding father's time "to foster a loving relationship between the child and the" father.

I would also draw your attention to a Saskatchewan Queen's (King's) Bench case Justice Dubé cites within his decision, Lygouriatis v. Gohm, 2006 SKQB 448, wherein the issue of parenting time for the non-residential parent is considered for a 3-month-old child. This case considers the conventional wisdom of frequent and short visits for an infant. The case points out the importance of evenings and overnights in the bonding process, notwithstanding the usual approach to these cases.

Times are certainly changing in the family law world. The traditional “access” order of every other weekend and one midweek visit for the non-residential parent has basically disappeared. Judges today are increasingly sensitive to societal changes that see parenting responsibilities in quite a different manner than even some 30 to 40 years ago. Family lawyers need to add these considerations to their “best interests” presentations in parenting disputes. Other than in exceptional cases, children benefit from the involvement of both parents. Courts and family lawyers should encourage this wherever possible. Caveat - I certainly recognize that there are some cases where either this is not possible or not in the child's best interests. However, in the majority of cases, I believe that the science supports this view.

My personal opinion is that we are in a far better place on these issues than when I began to practise family law. I am greatly encouraged.

Gary S. Joseph is the managing partner at MacDonald & Partners LLP. A certified specialist in family law, he has been reported in over 350 family law decisions at all court levels in Ontario and Alberta. He has also appeared as counsel in the Supreme Court of Canada. He is a past family law instructor of the Ontario Bar Admission course and the winner of the 2021 OBA Award for Excellence in Family Law.

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