“The mother and father put considerable emphasis on the Criminal Code. They argue it allows them to use reasonable force as parents to discipline their children. They defend their behavior, say it is not against the law and reject the Society’s zero tolerance policy for corporal punishment.
In Durham Children’s Aid Society v. J.L.B. (M), 2016 ONSC 6405 at paragraphs 11 and 12, Justice Nicholson reviews the decision in Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] S.C.R. 76 where the Supreme Court of Canada analyzes the scope of physical discipline that is permissible for children under s. 43 of the Criminal Code before it becomes the crime of assault. From there, he extrapolates six principles applicable to child protection proceedings:
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- Parents or persons who have assumed all the obligations of parents may use corporal punishment;
- The punishment must be intended for educative or corrective purposes. In Canadian Foundation for Children, Youth and the Law the court states, “Only sober, reasoned uses of force that address the actual behavior of the child and are designed to restrain, control or express some symbolic disapproval of his or her behavior” are permissible, Supra, see note 6. Here the parents argue that their punishments were intended to be remedial. I am not persuaded. I find the discipline they imposed on the children was reactive and motivated by anger and frustration when rules and expectations were not met. Force under those circumstances cannot be seen as reasoned or sober and should not be tolerated;
- The child must be capable of benefiting from the correction. This means that the capacity to learn must exist alongside the possibility of successful correction. Here, the parents point to M. and D.’s learning and behavioural issues when explaining their challenges as parents to raise them. Considering the evidence of the boys’ potential mental health diagnoses and the other challenges they face, I find it inconsistent for the parents to expect their sons to have the capacity to make positive and corrective changes from the use of force. M.’s recent evidence indicates that with age, he is better able to control his behavior and follow the rules. He says that he no longer gets hit as muchand it no longer hurts as much [Emphasis added]. For D., the situation is different. He is younger and still struggles to follow the rules and complete his chores properly. I am confident that the benefit and correction contemplated in the case law does not include fear-based learning motivated by self-protection;
- Children under two years of age are not capable of understanding why they have been hit. Therefore, force against children of this age cannot be corrective;
- Corporal punishment of teenagers is considered harmful because it can induce aggressive or antisocial behavior. Here, M. is 15 and a teenager. D. is 12 and soon to be a teenager. Their punishment should not be physical;
- Physical punishment must be “reasonable under the circumstances”. To determine reasonableness, the court must look at whether the application of force caused harm or created the prospect of bodily harm. If it did, it was not reasonable. Here, the boys expressed their fear of being hit and harmed by their parents. D. said he believed if hit, he could die. Both boys reported continued pain on at least one occasion: M. in 2014 after receiving the belt; and, D. in 2018 after being hit by his father. The court must also determine whether objects, such as rulers or belts were used to deliver the punishment. If so, it was not reasonable. In this case, the parents did not deny their use of the belt in 2014. They have not used it since then but the children report that they continue to be struck with objects such as the toaster oven tray, cereal boxes, slippers and toys. These factors and others including objective appraisals based on current learning and consensus will assist the caregiver and the court to determine whether the force used is reasonable and reduce the danger of subjective decision-making. Outdated notions of what constitutes reasonable force are not to be given undue authority.”: Ibid, at para. 12.
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