Overnight Access For Toddlers

How do you determine overnight access for a non-custodial parent to a minor or a baby? 

In Sheppard v. Sheppard, the Newfoundland court considered an application for overnight access for a breastfeeding young child.  The Court noted the following governing considerations at paragraphs 10-11:

My duty at this juncture is to determine what is in the best interests of the child. In making this decision, I am mindful of the comments of McIntyre J. in K. (K.) v. L. (G.) (1985), 16 D.L.R. (4th) 576 (S.C.C.)where at p. 587 he said:

“. . . It must be the aim of the court, when resolving disputes between rival claimants for the custody of a child, to choose the course which will best provide for the healthy growth, development and education of the child so that he will be equipped to face the problems of life as a mature adult. Parental claims must not be lightly set aside, and they are entitled to similar consideration in realizing any conclusion. Where it is clear that the welfare of the child requires it, however, they must be set aside.”

11     After hearing the evidence of the Petitioner related to the custody and access issue, which was fairly brief, I am left to decide on these matters within the framework of what is in the best interests of the child. At this time, while there is some evidence to suggest that the Respondent may not be a responsible caregiver, I am not satisfied that I have enough information to properly decide what is in the best interests of this child in relation to access to his father. I say this considering the fact that the Respondent has had an estimated twenty visits with the child since the Interim Order was made. That Order provided for one access visit per week while the child was still being breastfed. It appears from her evidence that one of the main reasons why access is an issue for the Petitioner at this stage is that upon consulting with others and from her readings on the topic, she feels that it would not be in the best interests of a young child to spend overnights with his father. Whether this is correct or not is a matter which I must consider further in relation to this application after consideration of all of the circumstances.

In short, the Court basically stated that this issue is a question of fact, guided by the legal principle as to what is in the best interests of the child.  In the decision above, the Court declined to make a ruling on this issue in view of the lack of sufficient evidence, and so it let the status quo stand by way of the prior interim order.

In Cox v. Stephens, the mother raised a number of concerns in regard to granting the father overnight access for a very young child.  As the Court noted in regard to those concerns at paragraph 28:

Ms. Stephen’s concerns about overnights at this time were inchoate fears of some kind of psychological harm to her son. It appeared that then she had no factual grounds for any apprehension.

I strongly recommend that you read this decision as its narrative raises a number of issues in regard to the mother’s frequent attempts and strategies to frustrate access, among them, claiming that overnight access would be deleterious to the child’s well-being.  The Court here changed the custody from sole access to the mother to sole access to the father.  That decision, however, was overturned and the higher court substituted its order that joint custody be awarded with primary residence to the mother.  In any case, the father secured more generous access and custody to the child by reason of the mother’s frequent efforts to frustrate that access.

Since I do not know the full facts of your client’s case, I raise the above point since, in the overall continuum of interaction between parents, it is important to determine whether the mother is merely raising her concerns about overnight access as part of an ongoing strategy to restrict the father’s access.  If so, somewhere down the line, she might be opening the father up to greater rights of access.

Alternatively, if her concerns about overnight access are genuinely related to the tenderness of the child’s age, and there is some factual basis behind those fears (like regular breastfeeding schedules), then at least you are able to keep this in the realm of the best interests of the child.

As noted by the higher court in Cox, the governing principle is the best interests of the child as per the s.24 factors.  Put another way, the question is:  Are the child’s interests, at this tender stage, best served by ensuring a regular nighttime feeding schedule, or by having the child deprived of a regular feeding for a given night at this tender age?

In Lonquist v. Lonquist, the B.C. Court looked at the issue of overnight access in regard to a seven-month old, noting at paragraph 10:

The sticking point between the parties is the petitioner’s refusal to permit overnight access, which position is viewed by the respondent as unreasonable. There is no doubt that the respondent is well qualified to care for his daughter; he comes from a large family with many young nephews and nieces and of course he is a qualified physician with a qualification in family medicine. A number of his acquaintances and friends have deposed to his fitness as a parent. Because the respondent lives such a distance away, his visits must be infrequent and result in absences from this very young child for prolonged periods of time, it is not at all unreasonable for there to be a brief period of time at the beginning of the access period for the respondent to reintroduce himself to his daughter with the nanny present, before the leaves for an access time with her. I do however feel that it is not in the present best interests of this young child for the access visits to be overnight, even if there were some information as to where he planned to spend the nights with his daughter. The baby’s place at bed-time is at her home at least until her situation has reached a point of greater comfort and ease. It is not a question of creating a situation where the respondent will never be able to have overnight access because his visits to Vancouver are limited by his professional responsibilities and the expense. The child presently is simply too young and mother-dependant to consider overnight access. Accordingly, the petitioner is awarded interim custody of the child with reasonable and generous access to the respondent for those periods of time when he is in Vancouver. The access periods shall be no more than four days at a time, the first of each such visit to begin with a two hour visit in the presence of the nanny. The total time for each days visit shall be no more than eight hours. The petitioner shall make available the necessary clothing and other accoutrement for the respondent’s use during these visits.

The above point is key, in my opinion, if you want to prevail.  You must show that the child presently is simply too young and mother-dependant to consider overnight access.  Whether the judge in the above decision would feel the same way in regard to an 18-month old is a matter for speculation.  But what this seven month old has in common with the 18 month old is that both are still breastfeeding – and I would argue that a breastfeeding child is, in the words of the court above, a “mother-dependent” child, and thus, too young to consider overnight access.  And further, I would argue that, as noted by the court above, to deny overnight access at this stage is not a question of creating a situation where the respondent will never be able to have overnight access.  So I think the above considerations by the court are indeed helpful to you in regard to denying overnight access to a breastfeeding child on the basis of that child’s best interests.

Breastfeeding is indeed a relevant consideration in custody and access cases.  In Schulz v. Schulz, for instance, the court had awarded custody of the older children to the father, and would have awarded custody of the youngest child to the father as well, but for the fact that this child was breastfeeding, and so, on that basis alone, the breastfeeding child was left in the custody of the mother despite the fact that the court determined that, overall, the best interests of the children in that case were served by the father.  As the court noted at paragraph 57:

In this case I am satisfied that the best interests of the children will be met by placing Christopher, Gisela, Andreanna and Daniela in the custody of Mr. Schulz, and Peter in the custody of Mrs. Schulz. If Peter had been older and not breast-feeding, I would have placed him in the custody of Mr. Schulz as well. His ongoing welfare will have to be reconsidered at a later date.

With the factor of breastfeeding in mind, the Court concluded at paragraphs 72-76:

Mr. Schulz shall have access to Peter as follows:

73     (a) every Monday, Wednesday and Friday from 4:00 p.m. to 6:00 p.m.;

74     (b) every Sunday from 10:00 a.m. to noon;

75     (c) Christmas day from 10:00 a.m. to 12:00 noon; subject to such variations as are necessary by virtue of the fact that Peter is breast-feeding.

76     Once Peter is no longer breast-feeding, Mr. Schulz shall be entitled to overnight access once every week and to access for one week in the summer.

In Goodwin v. Goodwin, the Court also noted breast-feeding as a relevant factor for consideration at paragraph 32:

However, given Mr. Powter’s concerns, which again I feel compelled to accept at face value at this time, I am not persuaded that the father should be allowed overnight access. Further, given that the child is continuing to breastfeed and is expected to do so for some time to come, I am ordering a continuation of the existing access schedule. That is, the access shall occur between 4:45 p.m. and 7:45 p.m. when falling on a weekday and between noon and 6:00 p.m. when falling on a weekend

So, at the very least, you can see how your arguments have some support in the some of the cases that have considered breastfeeding as a factor for consideration.

In regard to the tender years doctrine, I point you to the following dicta of the Supreme Court of Canada in Young v. Young at paragraph 124:

The custody provisions of the Act reflect, to some degree, this evolving view of parental roles. Under the best interests test, courts no longer automatically grant custody according to the tender years doctrine. Instead, decisions are made according to the best interests of the child without the benefit of a presumption in favour of the mother, or, for that matter, the father.

In Marsden v. Murphy, the mother raised the following argument against overnight access for an 18-month old at paragraph 8:

The mother refuses to allow the child to spend any overnight access with the father during the week given that the child is only 18 months of age, and also because the father has to be at work at 7:00 a.m. during the week. The mother submits that giving him overnight access during the week simply means that the child will have to be awakened far too early in the morning, and transported from central Edmonton to St. Albert, simply to accommodate the father’s mid-week access. This would likely result in the child being sleep deprived, and would not be in the child’s best interests.

The court, however, addressed this concern at paragraph 17:

His mother, sister, and a friend have all volunteered to help with the child and her transportation following week day overnight access. They appear to be quite willing and able to assist in this regard, so the transportation issue early in the morning following overnight access is not a concern.

In regard to the tender years doctrine, the court noted at paragraph 22:

While I respect the view in the cases and literature cited by the father’s counsel that the children of tender years should not be away from either parent for more than 48 hours at a time to nurture bonding with each parent, this should not be a ritualistic or formal rule, for the same reasons that the “tender years doctrine” has been eliminated.

In Buckingham v. Bishop, the Court awarded immediate overnight access for a twenty-seven month old (however, breast-feeding schedules were not at issue).  As the Court noted at paragraphs 40-41:

It is also comforting to know that Mr. Buckingham has put Matthew down for his afternoon naps for a lengthy period of time and there is no evidence to suggest that there are any difficulties encountered at Monkstown Road. Matthew is familiar with his father’s home on Reeves Place and therefore no difficulties should be encountered there as well. I reject the submission that Matthew’s sleep will be so disrupted by the new baby’s crying that it will interfere with his sleep, to such an extent, that overnight access should be put off for a few months.

41     When all is considered cumulatively, I have concluded that immediate overnights will neither adversely affect Matthew’s overall well-being nor compromise his best interests.

And notably at paragraph 46:

It is now well established that evidence does not support one sex having innately superior parenting abilities. See: FOR THE SAKE OF THE CHILDREN – REPORT OF THE SPECIAL JOINT COMMITTEE ON CHILD CUSTODY AND ACCESS. Similarly, the “tender years doctrine” is now almost always rejected.

Finally, I point you to the Ontario decision of Heuss v. Surkos, which surveyed the body of case law in regard to overnight access for children of tender age.  As the Court noted  at paragraphs 23-31:

In Szczecina v. Szczecina, [2003] O.J. No. 1249 (Ont. S.C.J.), the issue centred on the custody of a nine-month-old child. The court rejected the “tender years” doctrine, awarded temporary custody to the father and access to the mother on alternate weekends from Fridays at noon to Mondays at noon.

24     In Huffman v. Kuffner, [2003] S.J. No. 292 (Sask. Q.B.), the father was seeking access to a 19-month-old child for a consecutive period of 72 hours. The court held that, having regard to the child’s age, the requested access was too much. However, Smith, J. stated, at paragraph 6:

Having said that, there is no question the petitioner father has demonstrated a real commitment to Aza [the child] and that it is important to nourish that relationship. [my emphasis]

25     As a result, the court awarded access for a 48-hour period on alternate weekends, as well as midweek access.

26     In Waugh v. Waugh (1998), 42 R.F.L. (4th) 415 (Ont. Gen. Div.), there were competing applications over the custody of a 17-month-old child. The court held that it was important for the child to have a good relationship with the non-custodial father. In the result, the court ordered alternate weekend access from Fridays to Sundays, as well as midweek access.

27     In Stewart-Croll v. Croll (1996), 24 R.F.L. (4th) 219 (Man. C.A.), the subject child was 2- ¹/₂ years old. The court held that “the child’s maximum contact with each parent is in his best interests” and permitted the access father to care for the child three days in succession during the weeks that the father was required to work on the weekends.

28     Finally, in Peterson v. Scalisi, [2001] O.J. No. 2774 (Ont. S.C.J.), the contest was in respect of a three-year-old child. A report from the child’s lawyer indicated the importance of the child maintaining a close and meaningful contact with each parent. The father was awarded custody, while the mother – notwithstanding her deficiencies, including her inflexibility and her unwillingness to include the father in the life of the child – was given substantial and extensive access, including weekends and the sharing of holidays.

29     In support of the mother’s position that her Plan ought to be implemented and that overnight access ought to be restricted until Evelyn turns five years of age, I was referred to the case of Holtzhauer v. Murphy , [1996] O.J. No. 1756 (Ont. Prov. Div.), a decision of Katarynych, J., presiding in the Ontario Court of Justice. In that case, the child in question had just turned two years of age. The father and child had never resided together as a family. The father had previously assaulted the mother. The father’s ongoing access to his daughter had been supervised by others. The child did not know him as her father and had been taught to call him by his first name. As well, the father lived in Hamilton whereas the child lived in Kitchener. The court deferred overnight access to give the child and the father a better opportunity to get to know each other. However, even in those circumstances which were very unfavourable to the father’s position, Katarynych, J. ordered limited overnight access to begin when the child was just 28 months old – Evelyn’s current age. The facts in Holtzhauer are specific to that family and in my view have little or no applicability to the facts of this case.

30     I have referred to these cases in order to provide a sense of what direction the courts have taken in recent years in dealing with young, preschool children. What I glean from these cases are the following principles: First, it is important to maximize the contact between access parents and young children. Second, it is important that this contact be meaningful such that the relationship between them is allowed to flourish. Third, unless specific circumstances exist which point in a different direction, that contact should include regular overnight visits. And fourth, the overnights should be of sufficient duration and frequency to permit the relationship to flourish.

31     In the facts of this case, the only contraindication to implementing immediate and regular overnight access to Mr. Heuss is the unchallenged evidence of Evelyn’s sensitivity to change. While I do not dismiss this as an important consideration, it is something which is capable of being addressed in the access order which I propose to make.

In sum:

The age of an infant, per se, is not material to these decisions.  Rather, as in all these cases, it comes down to the child’s best interests.  As far as I have seen, breast-feeding at any age is a material factor to consider as to whether overnight access is appropriate at that stage.  Other factors to consider are the child’s prior history and acquaintance with the father to date; the child’s sleep patterns; the father’s ability to provide a secure and safe sleeping environment; and so on.

Jamie Cooper

Barrister & Solicitor