In this post, we look at how spanking and physical discipline are treated under both criminal and family law in Canada, and encourage parents to use healthy alternatives when parenting your children.
Physical Discipline under the Criminal Law
The Supreme of Court of Canada touched upon the issue of the legality of spanking and physical discipline in Canadian Foundation for Children, Youth and the Law v. The Attorney General of Canada, where they considered whether section 43 of the Canadian Criminal Code violated our constitution.
Section 43 states:
Every schoolteacher, parent or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child, as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances.
It can be used by teachers and parents as a defense to a criminal charge of assault where they have used physical discipline against a child.
In a 6 to 3 decision, the Court upheld section 43 as constitutional and narrowed the applicability of the defense by finding that parents cannot strike children with the intent to harm them, and they cannot spank a child younger than two or older than 12 years old.
The Court justified their decision stating that Infants and toddlers could be physically hurt and are unlikely to see the connection between their actions and the spanking, and striking teenagers “can induce aggressive or antisocial behaviour.” The judges also ruled that parents could not hit children with belts, rulers or other objects, or slap them anywhere on the head.
Since the judgement, there have been numerous cases where parents have been found guilty of assault for spanking or using other forms of physical discipline on their children, particularly where the force was not reasonable, where they used an object, or where there was intent to harm rather than to correct behaviour.
While using physical discipline is not illegal in circumstances outlined by the Supreme Court of Canada, this only means that using physical discipline is not a criminal offense leading to charges and a criminal record if found guilty.
Physical Discipline from the Perspective of Family Law
The considerations involved in a family law case are very different from a criminal proceeding however, and the use of physical discipline on your child is likely to have a substantial impact on your case in this context. This is true even if you are using physical discipline within the parameters set by the Supreme Court of Canada.
The Criminal Code generally enforces minimum standards of behaviour and upholds the basic rights of people, in this case children.
In a family law case the court is not looking for parties to uphold a minimum standard of behaviour but to seek out the parenting arrangements that are in in the best interests of the child based on the parenting capacity and circumstances of the parties. In this context, the court will consider the physical discipline as an indication of the party’s parenting style and capacity, as well as the potential or actual effect of the behaviour on that particular child.
There has been a substantial amount of research that indicates that spanking and other forms of physical discipline have a negative effect on children. This research also indicates that physical discipline only ensures immediate compliance, and does not serve an effective teaching function.
The Good News
The good news is that parents can always learn new, more effective methods of discipline that do not have a negative impact on the well-being of the child. The harmful effects of physical discipline are correlated with the severity and frequency of the discipline, so taking steps to learn new ways of addressing parenting issues should have a significant impact on outcomes even if physical discipline has been used previously.
From a legal standpoint, the court hearing your case is more likely to be concerned with a parent’s current parenting skills and capacity and whether they will remain constant than what has happened in the past (barring of course any extreme circumstances and a multitude of different factors that may include the child’s views, if appropriate).
Making the effort to learn new skills and to become a better parent and co-parent is always worthwhile. It will make a substantial difference in your legal case and will improve the health and well-being of your family. At Connect Family Law, we can direct you to the appropriate professional to get the assistance that you require.
To learn more about the effect of spanking and physical discipline, as well as healthy alternatives, please see these resources:
What Science Says About Using Physical Force To Punish A Child (Huffington Post)
How Spanking Harms the Brain (Psychology Today)
Is Corporal Punishment an Effective Means of Discipline (American Psychological Association)
What Science Says—and Doesn’t—about Spanking (Scientific American)