Child Protection, Abuse and Corporal Punishment of Children

January 6th, 2015 by Meliha Waddell

Recently, CBC’s As It Happens interviewed an Under-Sheriff in Florida whose deputy had been called to witness the corporal punishment of a child in progress –  a father “spanking” a twelve year old girl using a paddle. As the Florida police officer explains, Florida Law allows corporal punishment of children, even using objects, as long as it does not result in injuries such as dislocations, bone or skull fractures, inter cranial haemorrhage, suffocations, burns or disfigurement. Twenty years ago, while working as an Ontario Paramedic, I remember responding to a call where a child had received that level of injury and his father said “It was his right to teach his child as [he] saw fit.” While not entirely accurate, that statement did reflect section 43 of the Canadian Criminal Code, which permits the “correction of a child by force”. One of my first wins at trial was the successful use of that section in a criminal law case.

The Criminal Law Rules
That parent’s beliefs are no longer the law in Canada. The rules for corporal punishment are much stricter. They were set out by the Supreme Court of Canada in the case of Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General). In that case, an organization promoting children’s rights argued that section 43 of the Criminal Code violated section 15 of the Canadian Charter of Rights and Freedoms because in Criminal Law, there were already defenses to using physical force (against someone’s will) to protect another person – such as grabbing a child, or other person, and pulling them out of the way of a speeding car. The Supreme Court disagreed and allowed section 43 to stand. However, the Court laid out strict rules for what is permissible corporal punishment. These rules for parents, under the criminal law, are set out at paragraph 37 of the Supreme Court’s judgment, which says:

37 Based on the evidence currently before the Court, there are significant areas of agreement among the experts on both sides of the issue (trial decision, at para. 17). Corporal punishment of children under two years is harmful to them, and has no corrective value given the cognitive limitations of children under two years of age. Corporal punishment of teenagers is harmful, because it can induce aggressive or antisocial behavior. Corporal punishment using objects, such as rulers or belts, is physically and emotionally harmful. Corporal punishment which involves slaps or blows to the head is harmful. These types of punishment, we may conclude, will not be reasonable.

Paragraph 40 of the decision sets out some further rules about what type of punishments are allowed by the Criminal Code and what types are not:
Degrading, inhuman or harmful conduct is not protected… Teachers may reasonably apply force to remove a child from a classroom or secure compliance with instructions, but not merely as corporal punishment. Coupled with the requirement that the conduct be corrective, which rules out conduct stemming from the caregiver’s frustration, loss of temper or abusive personality… The gravity of the precipitating event is not relevant.

The Child Abuse and Child Protection Rules
However, even if a parent does not use corporal punishment that is a criminal offence, using any corporal punishment can get that parent in trouble with a children’s aid society. A children’s aid society may even decide to take children and put them in foster care if it feels that a parent’s disciple methods are inappropriate. Children’s aid societies always view any use of corporal punishment as being inappropriate because current research does not support the idea that any form of spanking or hitting benefits the child or is an effective teaching tool.

Section 37(2) of Ontario’s Child and Family Services Act sets out the types of child abuse that justify a children’s aid society, or child protection agency, intervening with a family and possibly apprehending children. Those circumstances include a parent (or other caregiver) physically or emotionally harming a child, or putting a child at risk of physical or emotional harm. In Children’s Aid Society of Rainy River v. B.(C.), the court held that infliction of real harm, that was more than trifling, could justify a children’s aid society stepping in to protect the children. Whether the discipline violated the Criminal Code is not a consideration – it is whether the child is being really harmed or put a risk of real harm.

It may be possible for a parent who uses spanking or other forms of corporal punishment to convince the Family Court, that there is not proof that his or her discipline actually causes harm to a child. It may be possible to do so only after a long and expensive court case. And for the duration of the court case, and possibly afterward, the children’s aid society will be intervening with the family, investigating and judging every aspect of family law and possibly reporting it to the police. In addition, even before a judge finally decides the case, a Family Court Judge may order the parents to take course about how to discipline children, or anger management courses, domestic violence courses, or counseling. This is because all of the social science and child development research has found better ways to discipline children than spanking them, hitting them, or using other forms of corporal punishment.

If a children’s aid society worker calls and wants to speak to you, or your family members, then you should read this page immediately. If the child protection worker tries to speak to your kids, without your permission, read this page. You may also want to read more about children’s aid society’s cases in this $20-easy-to-understand book on Ontario Family Law.

However, if you have a children’s aid society investigating you, then you really need to speak to a good child protection lawyer immediately! If you do the wrong things, or say the wrong thing, you could lose you children and they could end up in foster care, or adopted by new parents. If the children’s aid society’s concerns involve you using corporal punishment on children, then the police may become involved, charge you under the Criminal Code and put you in jail, at least until you get bail. Only a consultation with a good child protection lawyer, can keep you out of serious trouble.

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