Siegel's Family Court Calendar

“Pleadings frame the case before the court. They tell the court what the case is about and they are the mechanism by which parties tell one another the case the other has to meet. Thus, generally, a court will not make an Order on a motion or at trial that has not been sought in the underlying pleadings.

Having said that, where parties are clearly on notice of one another’s positions in a matter, and there is no element of surprise or inability to know the case to be met, courts have taken a practical and non-technical approach to this principle in many cases. The authority for so doing is often cited as Rule 2 of the Family Law Rules, which provides that the primary objective of the FLR is to deal with matters justly. This includes ensuring that the procedure is fair to all parties, saving expense and time, dealing with a case in a manner that is appropriate to its importance and complexity, and giving appropriate resources to the case recognizing the need to give resources to other cases.  See for example: Magcalas v. Magcalas, 2020 ONSC 595 at 65; Smith v. Smith, 2016 ONSC 1157 at 167 – 175; and Adorno v. Adorno, 2019 ONSC 5517 at 13. Applications of Rule 8 of the FLR similarly emphasize practicality and a non-technical approach where both parties have been clearly aware of the claims in the case. It is fair to say that where parties are self-represented, a broad and practical approach to pleadings will assist in treating matters justly.”

          Jefic v. Jefic (Grujicic), 2022 ONSC 7240 (CanLII) at 47-48

“In making parenting orders, and in the absence of third-party assessors or other expert evidence, I consider the Parenting Plan Guide prepared by the Ontario Chapter of the Association of Family and Conciliation Courts (“AFCC-O”). The Parenting Plan Guide has been found to be helpful by other judges of this Court in determining parenting schedules that are in a child’s interest based on the child’s age and developmental stage: see Hatab v. Abuhatab, 2022 ONSC 1560, 69 R.F.L. (8th) 18; Czyzewski v. Fabro, 2022 ONSC 4883,77 R.F.L. (8th) 385; McBennet v Davis, 2021 ONSC 3610, 57 R.F.L. (8th) 1. As stated by Chappel J. in McBennet at para. 92:

The AFCCO-O Guide summarizes basic social science knowledge about the effects of parental separation on children, provides suggestions and guidance to help improve communications and cooperation between separated parents and offers valuable guidance about formulating parenting arrangements that meet the needs of children.”

          Dworakowski v. Dworakowski, 2022 ONSC 7209 (CanLII) at 54

“Both parties worked very hard during marriage. They both worked long hours and engaged in demanding physical work. The crux of Rick’s argument is that at age 60, after working hard for so many years, he ought to be able to stop and enjoy the rest of his life.  He says after almost 13 years of paying spousal support, he has fully satisfied his obligation and is therefore seeking an order terminating it.

There is considerable jurisprudence on the question of when early retirement, that is prior to age 65, may entitle a payor spouse to a reduction or termination of an existing spousal support obligation. Where the retirement is involuntary, due to health reasons, cogent medical evidence is required. See for example: Cosette v.Cosette, 2014 ONSC 4667 (CanLII), 2014 ONSC 4667, aff’d 2015 ONSC 2678 (Div Ct.); Hesketh v. Brooker, 2013 ONSC 1122 (CanLII), 2013 ONSC1122; and Walts v. Walts, 2013 ONSC 6787.  Where the retirement is involuntary because the employer demands it, the court must consider the payor’s alternative income earning capacity and overall wealth in determining whether there is a material change in the conditions, means and other circumstances which justifies a reduction or termination.

There are many cases which are factually similar to this one; the early retirement is strictly voluntary. In Bullock v Bullock, 2004 CanLII 16949 (ONSC), Corbett. J. at paras 9 and 10 expresses the issue as follows:

Many people dream of retiring “early”, although there is not a set age at which people today expect to cease working. Many successful people find they can afford to stop work before they reach the age of 65. Others continue on well into their seventies and even longer. The legal question for this case, then, is not whether Ronald should retire at age 62, but whether this personal choice should be viewed as a quote material change of circumstances quote for the purposes of payment of spousal support.

I have already determined that, in this case, the language in the consent order meets the threshold for a review but the general principles in Bullock, Cosette and Hickey v. Princ regarding early retirement do apply here. A payor spouse cannot side-step support obligations by unilaterally leaving the workforce early. As stated by the Divisional Court in Cosstte, at para. 13   citing Bullock, also at para 13: “The support payor cannot choose to be voluntarily underemployed whether by retirement or otherwise and thereby avoid his or her spousal support payment obligations.””

          Lepoidevin v. Lepoidevin, 2019 ONSC 7434 (CanLII) at 19-22

“Section 30(1) of the CLRA provides that the court “by order, may appoint a person who has technical or professional skill to assess and report to the court on the needs of the child and the ability and willingness of the parties or any of them to satisfy the needs of the child”.

Furthermore, the court will choose and appoint the assessor in the absence of agreement by the parties (s. 30(3), CLRA).

The proposed assessor must first consent to make the appointment and agree to make a report within the period of time specified by court order (s.30(4)).

The persons, including the parties and child, must attend for the assessment as provided by court order (s. 30(5), CLRA).

The resulting assessment report will then be admissible as evidence in the proceeding (s. 30(9), CLRA).

The court has considerable discretion in ordering and apportioning the assessor’s fees as between the parties and may relieve one party from paying any portion if it will cause  serious undue hardship (s. 30(12) – (14), CLRA).

In the oft-cited case of Glick v Cale, 2013 ONSC 893, 48 RFL (7^th) 435, at para. 48, Kiteley J. provided a non-exhaustive list of questions to inform this analysis.  Both parties used these factors as a roadmap for their respective submissions.  In that decision, at para. 21, Kiteley J., quoting the Divisional Court decision rendered in Linton v. Clarke, 21 OR (3d) 568, 1994 CanLII 8894 (ON SCDC),  and Baillie v. Baillie, 2012 ONSC 3728, noted that s. 30 assessments are not to be made as a matter of routine for resolving parenting disputes but rather should be restricted to situations in which assessments can provide expert evidence to address “the emotional and psychological stress within the family unit in the final determination of custody”.

As most recently noted by the Court of Appeal in A.C.V.P. v A.M.P., 2022 ONCA 283 at para. 30, “there are no hard and fast rules in determining whether to order an assessment under s. 30 of the CLRA;  rather, the inquiry is fact-driven and flexible”.

In L.T.C. v D.P., 2021 ONSC 7806, at para. 12, the court ordered a s. 30 assessment in view of the significant behavioural issues of the child  and the fact that the parents accused each other of behaving inappropriately with the child.  In that case the court required a clinical assessment to determine what parenting arrangements are in the child’s best interests “as well as the manner of implementing them in the least disruptive fashion given his diagnosis”.”

              Cibuku v. Cibuku, 2023 ONSC 7128 (CanLII) at 8-16

“The scope of the principle of res judicata, which prevents the re-litigation of issues previously and finally decided, was set out over 150 years ago in the leading British case of Henderson v. Henderson (1843), 3 Hare 100, 67 E.R. 313 (Eng. V.-C.) at 319. In that decision, which was adopted into Canadian law by our Supreme Court (see, for example, Maynard v. Maynard (1950), [1951] S.C.R. 346 (S.C.C.); Doering v. Grandview (Town) (1975), [1976] 2 S.C.R. 621, Vice-Chancellor Wigram stated at p. 115:

I believe I state the rule of the Court correctly when I say that, where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward only because they have from negligence, inadvertence or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.

(as cited in Grandview v. Doering, at p. 634)

The breadth of the principle of issue estoppel and its relationship to res judicata is set out by Laskin J.A., writing for the Court of Appeal for Ontario in Minott v. O’Shanter Development Co. (1999), 42 O.R. (3d) 321 (Ont. C.A.), at paras. 16-17, as follows:

16 I will first discuss the general principles underlying issue estoppel and then apply them to this case. Issue estoppel prevents the relitigation of an issue that a court or tribunal has decided in a previous proceeding. In this sense issue estoppel forms part of the broader principle of res judicata. Res judicata itself is a form of estoppel and embraces both cause of action estoppel and issue estoppel. Cause of action estoppel prevents a party from relitigating a claim that was decided or could have been raised in an earlier proceeding…. Issue estoppel is narrower than cause of action estoppel. It prevents a party from relitigating an issue already decided in an earlier proceeding, even if the causes of action in the two proceedings differ.

17 The overall goal of the doctrine of res judicata, and therefore of both cause of action estoppel and issue estoppel, is judicial finality. “The doctrine prevents an encore, and reflects the law’s refusal to tolerate needless litigation.”

[Footnotes omitted]

The rationale for the application of the principle of issue estoppel was pithily described by Binnie J., writing for the Supreme Court of Canada in Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R. 460 (S.C.C.), at para. 18, as follows:

18 The law rightly seeks a finality to litigation. To advance that objective, it requires litigants to put their best foot forward to establish the truth of their allegations when first called upon to do so. A litigant, to use the vernacular, is only entitled to one bite at the cherry.

The three-part test for the application of issue estoppel was adopted by the majority of the Supreme Court of Canada in Angle v. Minister of National Revenue, [1976] 2 S.C.R. 248 (S.C.C.), at p. 254. The Angle test was originally set out in the decision of Lord Guest of the British House of Lords in Carl-Zeiss-Stiftung v. Rayner & Keeler Ltd., [1967] 1 A.C. 853 (Eng. H.L.), at p. 935, as:

(1) that the same question has been decided;

(2) that the judicial decision which is said to create the estoppel was final; and,

(3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies….

(See also Danyluk v. Ainsworth Technologies Inc., , at para 25.)

The nine following additional principles, derived from further authorities, are relevant to the consideration of issue estoppel in this case:

1. The issue out of which the estoppel is said to arise must have been “‘fundamental” to the decision arrived at in the earlier proceedings (Angle v. Minister of National Revenue, at pp. 255, 265-66).
2. The breadth of issue estoppel “…extends to the material facts and the conclusions of law or of mixed fact and law (‘the questions’) that were necessarily (even if not explicitly) determined in the earlier proceedings” (Danyluk v. Ainsworth Technologies Inc., at para. 24).
3. Issue estoppel encompasses “issues which, although not expressly raised in the previous case, are necessarily assumed in it or negatived by it” (Allen v. Morrison (2006), 139 C.R.R. (2d) 324(Ont. S.C.J.), at para. 21, citing Sopinka, Lederman and Bryant, The Law of Evidence in Canada, 2nd ed. (Toronto: Butterworths, 1999), at p. 1084-85)).
4. Issue estoppel applies with equal effect to consent judgments (R. v. Dieckmann, 2017 ONCA 575, 355 C.C.C. (3d) 216(Ont. C.A.), at para. 35, citing Hardy Lumber Co. v. Pickerel River Improvement Co. (1898), 29 S.C.R. 211(S.C.C.); and Ontario Sugar Co., Re (1911), 24 O.L.R. 332 (Ont. C.A.), leave to appeal refused, (1911), 44 S.C.R. 659 (S.C.C.); Arslan v. Sekerbank T.A.S., 2016 SKCA 77, 480 Sask. R. 235 (Sask. C.A.), at para. 100).
5. “The issue that is estopped may be an unstated premise underlying the consent to judgment where that premise is a prerequisite to the conclusion reached by the parties in the consent” (Arslan v. Sekerbank T.A.S., at para. 100, citing Donald L. Lange, The Doctrine of Res Judicata in Canada, 3d ed (Toronto: LexisNexis, 2010), at p. 359)).
6. The court has the discretion to refuse to apply issue estoppel when to do so would cause unfairness or work an injustice (Minott v. O’Shanter Development Co., at para 49; Danyluk, at para. 33). In doing so, the court “should stand back and, taking into account the entirety of the circumstances, consider whether application of issue estoppel in the particular case would work an injustice” (Danyluk, at para. 80).
7. But that discretion must be “very limited in application” (Naken v. General Motors of Canada Ltd., [1983] 1 S.C.R. 72(S.C.C.), at p. 101, speaking of the discretion regarding res judicata).
8. When a party claims that newly discovered facts or materials, create special circumstances that overcome the application of issue estoppel, the court will look to the exercise of due diligence. The person seeking to relitigate an issue must demonstrate that the new fact or materials could not have been ascertained by the exercise of reasonable diligence at the time of the first action. (Grandview v. Doering, at pp. 626, 635-39; Minott v. O’Shanter Development Co., at para. 51).
9. Issue estoppel applies to decisions of arbitrators and administrative tribunals (Sopinka, Lederman and Bryant, The Law of Evidence in Canada, 5th ed., (Toronto: Butterworths, 2018) at p. 1416, para. 19.70; Minott v. O’Shanter Development Co., at para. 18; Rasanen v. Rosemount Instruments Ltd. (1994), 17 O.R. (3d) 267(Ont. C.A.)). As Abella J.A., as she then was, wrote for the court in Rasanen v. Rosemount Instruments Ltd., at para. 37:

[T]he policy objectives underlying issue estoppel, such as avoiding duplicative litigation, inconsistent results, undue costs, and inconclusive proceedings, are enhanced in appropriate circumstances by acknowledging as binding the integrity of tribunal decisions.

10. Issue estoppel can even apply to interlocutory orders in the same proceeding. In Earley-Kendall v. Sirard, 2007 ONCA 468, 225 O.A.C. 246(Ont. C.A.), McFarland J.A., writing for the court, adopted this statement by E. Macdonald J. in Ward v. Dana G. Colson Management Ltd. (1994), 24 C.P.C. (3d) 211(Ont. Gen. Div.) at 218, aff’d. [1994] O.J. No. 2792 (Ont. C.A.):

A decision in an interlocutory application is binding on the parties, at least with respect to other proceedings in the same action. I agree with the submission that the general principle is that it is not open for the court, in a case of the same question arising between the same parties, to review a previous decision not open to appeal. If the decision was wrong, it ought to have been appealed within the appropriate time-frames. This principle is not affected by the fact that the first decision was pronounced in the course of the same action. See Diamond v. Western Realty Co., [1924] S.C.R. 308.”

          Spadacini-Kelava v. Kelava, 2020 ONSC 7907 (CanLII) at 102-106

“The starting presumption is that deference should be given to a parent’s decision whether to award a grandparent access to a child: Chapman v. Chapman, 2001 CanLII 24015 (ON CA), at para. 21. In Giansante v. DiChiara, 2005 CanLII 26446 (Ont. Sup. Ct.) at para. 18, Justice Nelson reviewed the Ontario Court of Appeal’s decision in Chapman, and held that deference should generally be given to a custodial parent’s decision regarding access unless the following three questions are answered in the affirmative:

(1)   Does a positive grandparent-grandchild relationship already exist?

(2)   Has the parent’s decision imperilled the positive grandparent-grandchild relationship? and

(3)   Has the parent acted arbitrarily?

In Torabi v. Patterson, 2016 ONCJ 210 at para. 61, the court re-formulated the Giansante test for grandparent access into a two-part test as follows:

First, the determination of whether the court should defer to the decision of the parent(s). That decision involves the consideration of the three-part test articulated by Nelson J. in Giansante, following Chapman. Less deference may be owed when one of the parents had died, meaning that the child may lose a relationship with the other side of the family.

Second, and only if the court refuses to defer to the parent(s), whether in the view of the court, access is in the best interests of the child. In that case, reference must be made to the criteria found in CLRA section 24(2).

See also Capone v. Pirri, 2018 ONSC 6541 para. 12 in which the court endorses and applies the same two-part formulation; Botelho v. De Medeiros, 2017 ONCJ 463 at paras. 21 – 29.

In a recent decision of Madsen, J., Ninkovic v. Utjesinovic, 2019 ONSC 558, 23 R.F.L. (8th) 172, the law related to grandparent access was reviewed. I find paragraphs 72-74, inclusive, very instructive and applicable to this case, at the second stage of the Torabi test:

[72]  In considering, at the second stage, whether access to the grandparent is in the best interests of the child, an important consideration is the extent to which this would cause anxiety and stress for the parent, which in turn could have a deleterious impact on the child. For example in Barber v. Mangal, 2009 ONCJ 631, Justice Brownstone found that the intensity of the conflict between the parents and the grandmother seeking access was such that any access would be extremely stressful for the parents and “given their personalities, there is a very real and substantial risk that such stress would be visited upon the child.” See para. 17. At the same time, animosity does not necessarily preclude an access order. See para. 18.

[73]  See also MacDonald v. MacDonald, CanLII 15444 in which Justice Pazaratz found that the “level of conflict between the applicant and the respondent is so overwhelming that any future contact will invariably result in the children and their family experiencing more upset, commotion, and grief,” and dismissed the grandmother’s request for access to her daughter’s children.

[74]  A further consideration is whether an access order would destabilize the family unit. See Blackburn v. Fortin, 2006 CarswellOnt 3458. In that case, Justice Smith declined to grant access to a grandmother where significant tension existed between the grandmother and mother, the grandmother often imposed unsolicited views on proper child-rearing, and the grandmother had made a heavy-handed attempt to change the parents’ decision regarding schooling. The court found that access could destabilize the family unit. [Emphasis Added]”

B.F. v. A.N., 2022 ONSC 7125 (CanLII) at 66-68

“The analytical framework for the motion to strike under for non-compliance with court orders or Rules is summarized in Sheresht v. Abadi, 2021 ONSC 1665 at para. 48:

a.   First, the judge must be satisfied that there has been non-compliance (Mullin v.Sherlock, 2018 ONCA 1065 (CanLII), at para. 44). At this step, it is critical that the motion judge outline in detail their findings respecting the party’s non-compliance with any relevant orders or Rules (Kovachis v, Kovachis, 2013 ONCA 644).

b.   Second, if the court is satisfied that there has been non-compliance, the court must assess the most appropriate remedy based on the particular facts of the case before the court. In undertaking this task, the court should consider and weigh the following factors:

i.   The extent and persistence of the non-compliance (Horzempa v. Ablett, 2011 ONCA 633 (C.A.), at para. 7);

ii.   Whether the disobedience of the orders and Rules was wilful in nature (Marcoccia, supra, at para. 13;Kovachis, supra at para. 3; Manchanda v. Thethi, 2016 ONCA 909, at para. 9);

iii.   Whether the non-compliant party made reasonable efforts to comply and is able to provide acceptable explanations for the breaches (Chiaramente v. Chiaramente 2013 ONCA 641, at para. 37; Brisson v. Gagnier, 2014 ONCA 909 (C.A.), at para. 3; Marcoccia, supra, at paras. 10-12; Horzempa, supra, at para. 6; Mullin, supra, at para. 45);

iv.   Where the non-compliance relates to support orders, the payor’s financial circumstances and their ability to pay support (Higgins v. Higgins, 2006 CanLII 33303 (ON CA); and

v.    The remedy should be proportionate to the issues in question and the conduct of the non-compliant party (Kovachis, supra, at para. 3; Manchanda, supra, at para. 9; Mullin, supra, at para. 49). It should not go beyond what is necessary to express the court’s disapproval of the conduct in issue (Marcoccia, supra, at para 14; Purcaru, supra, at para.49).”

          Raji v. Lomonaco, 2023 ONSC 7033 (CanLII) at 4

“To date the Superior Court of Justice has awarded monetary penalties against parties who are in breach of family court orders.

In each of Granofsky v. Lambersky, 2019 ONSC 3251, and Di Poce v. Di Poce, 2022 ONSC 2099, the courts relied on Rules 1(8) which provides that if a person fails to obey a court order, “the court may deal with that person’s breach by making any order that it considers necessary for a just determination of the matter.  Rule 1(8) then sets out a non-exhaustive list of enforcement remedies, including, on motion, contempt.

While the list of enforcement remedies do not expressly include the assessment of a monetary penalty for non-compliance with a court order (unless by motion for contempt which does provide for a monetary penalty), the court in these two decisions have in fact added a monetary penalty as part of the court order enforcement arsenal, without the need to bring a motion for contempt of court.

However, in Altman v. Altman, 2022 ONSC 4479, Faieta J. declined to impose a monetary penalty for breach of a family court order on the basis that ordering a monetary penalty payable to a party is expressly dealt with by Rule 31(5)(c) of the Family Law Rules as a remedy for contempt.  As noted by the Court of Appeal in Bouchard v. Sgovio, 2021 ONCA 709, without deciding the issue, there are limits to the enforcement remedies a court can impose for non-compliance with court orders under r. 1(8) short of contempt.  Contempt, along with the sanctions that can be assessed for contempt, must be proven on the evidentiary standard of beyond a reasonable doubt.  Conversely, the remedies for non-compliance set out in Rule 1(8) must be proven on the lower threshold evidentiary standard of a balance of probabilities.”

          Nodder v. Wasserman, 2023 ONSC 6982 (CanLII) at 31-34

“A joint tenant has a prima facie right to partition or sale of land.  An exception is where the applicant has acted maliciously, oppressively or with a vexatious intent towards the respondent relating to the partition and sale issue itself (Silva v. Silva, (1990) 1990 CanLII 6718 (ON CA), 1 O.R. (3d) 436 (C.A.), at p. 441).

The Applicant has proven that she is registered on title as a joint tenant.  The Respondent does not deny this.

Furthermore, there is no evidence that supports a finding that the Applicant has acted maliciously, oppressively or with a vexatious intent towards the Respondent as relates to the proposed partition and sale of the Property.

However, the Respondent asserts that placing the Applicant on title was gratuitous and therefore presumptively gives rise to a resulting trust in his favour.  He relies on Pecore v. Pecore, 2007 SCC 17 (CanLII).

A resulting trust arises when title to a property is in one party’s name, but that party is either a fiduciary holding it in trust for the transferor or gave no consideration for that property (Pecore, at para. 20).  If either situation is established, then it gives rise to a rebuttable presumption of a resulting trust (Pecore, at para. 22). As explained in Pecore, at paras 24-25, a rebuttable presumption of a resulting trust places the onus on the recipient or transferee to prove, on a balance of probabilities, that a gift was intended.

However, there is an exception to this general presumption of a resulting trust called a presumption of advancement. A presumption of advancement arises in two situations, one of which is a transfer between a husband and a wife (Pecore, at paras. 28).  The Respondent argues that since he and the Applicant were not married, therefore, this presumption of advancement does not apply.

I agree with the Respondent.  The Legislature had codified this presumption of advancement and did not include unmarried couples in s. 14 of the FLA.  This is in keeping with the exclusion of unmarried couples from the equalization and matrimonial home regimes under Parts I and II of the FLA.  It also codified the presumption of resulting trust in other situations under the same provision.”

            Hutton v. Wakely, 2023 ONSC 6964 (CanLII) at 40-46

“The Mother argues that for children under 3, parenting plans should be. incremental, slowly introducing longer periods of parenting time and monitoring the child’s adjustment to each step of the plan as new changes are implemented. She relies upon  Holtzhauer v. Murphy, 1996 CarswellOnt 1831 for the proposition, “nighttime in a strange bed and a strange place is a real vulnerability for a small child.”

However, the antiquated “tender years” principle no longer applies to determining the access schedule for a young child:   Botticelli v. Botticelli, 2009 ABQB at paras 15, 32 and 37.

As well, in this case the Father has been spending significant time bonding with the Child. The Child knows and loves him and there is no time required for the Child to get used to the Father as is required in some cases where there has been the complete absence of one parent in the child’s life.

In Holomey v. Hills, the Father sought overnights with the 18 month old child.  His current schedule included parenting time every other day, for two hours from 10: am to 12 pm. The Father faithfully availed himself of that time.  The Mother’s evidence was that the Father was a barely competent parent, that he had been abusive during the relationship and that she was still breastfeeding, so overnight access was not practical.  The Court stated that the Mother’s resistance to an increased schedule appeared to be punitive.  It also stated that breastfeeding is a factor, but one amongst many.  The Court cited caselaw stating that regular contact should exist between access parents and young children, which should include regular overnight visits. Holomey v. Hills, 2020 ONSC 6299, at paras 8-10, 13-14, 17-21.

In Cavannnah v. John, 2008 CarswellOnt 7455, the Mother claimed the Father could not have reasonable access with the parties’ 2 year old child because the child was breastfeeding. The court recognized that the importance of the child having a relationship with his father superseded the importance of a child continuing to breastfeed at his age.  The Court found that the father had shown patience with the mother’s desire to breastfeed the child, patience that restricted his time with the child.  The Court held that the mother was using breastfeeding as an excuse, and not considering the totality of the child’s needs when she restricted the Father’s access due to unclear and unspecific evidence about the benefits of breastfeeding.

See also S.D.G. v. D.K.N., [2017] B.C.J. No. 422 the court accepted the following statement regarding the importance of a young child bonding with both parents:

It is necessary for the interactions with both parents to occur in a variety of contexts (feeding, playing, diapering, soothing, putting to bed, etc.) to ensure that the relationships are consolidated and strengthened.  In the absence of such opportunities for regular interaction across a broad range of contexts, infant-parent relationships fail to develop and may instead weaken.

The evening and overnight periods (like extended days with nap times) with nonresidential parents are especially important psychologically not only for infants but for toddlers and young children as well. Evening and overnight period 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 hours visits cannot provide.”

Kelly, Joan and Lam, Michael, “Using Child Development Research to Make Appropriate Custody and Access Decisions for Young Children”, Family and Conciliation Courts Review, July 200, 4 of 14.

In my view, the fact that the Child is breastfeeding is only one consideration and should not be a bar to overnight parenting time for the Father if that is in the Child’s interests.”

Di Iorio v. Tropea, 2021 ONSC 8575 (CanLII) at 19-25