W A R N I N G
This is a case under Part III — Child Protection, of the Child and Family Services Act, R.S.O. 1990, c. C-11 and is subject to subsections 45(8) and 76(11) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act , R.S.O. 1990, c. C-11, which deals with the consequences of failure to comply with subsections 45(8) and 76(11), read as follows:
45(8) PROHIBITION: IDENTIFYING CHILD — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.
76(11) PUBLICATION — No person shall publish or make public information that has the effect of identifying a witness or a participant in a hearing, or a party to a hearing other than a society.
85(3) OFFENCES — A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
Court File and Parties
Oshawa Court File No.: FC-16-46-00 Date: October 19, 2016
Ontario Superior Court of Justice Family Court
Between:
The Durham Children’s Aid Society Applicant – and – J.L.B. Respondent
Counsel: F. Manji, for the Applicant P. Plourde, for J.L.B. S. Scovino, Office of the Children’s Lawyer
Heard: September 30, 2016
Decision
NICHOLSON J.:
[1] On September 30, 2016, I heard a motion brought by the mother for various temporary orders including an order that the child be placed back in her care and custody under a supervision order subject to certain terms and conditions. The parties agreed on the placement of the child with the mother and many of the terms of supervision. Three terms of supervision together with one term of access remained in dispute. Those issues were argued before me, and I rendered a decision on those issues on September 30, 2016. I indicated that my written reasons for my decision would follow. These are my written reasons.
[2] The child who is the subject of this motion is BB, born […], 2007. He is currently nine years old. The child has been in the care and custody of his maternal aunt, TB, since his apprehension on June 16, 2016.
[3] The three supervision terms in dispute are in relation to:
- Use of marijuana by the mother,
- Use of corporal punishment by the mother, and
- Request by the mother that the child be subject to certain terms and conditions.
[4] The issue with regard to access is whether the child should have access with his aunt TB after being placed back in the care of his mother.
Use of marijuana by the mother
[5] The mother argued that she should be entitled to continue use of marijuana. She claims she uses it for medicinal purposes, but she does not have a prescription. She said she used it several times a week to help her fall asleep. The society proposes that the mother have an alternate caregiver in place for the times that she plans to use.
[6] It is my strong belief that marijuana impacts the capacity of an individual to make reasoned decisions regarding the care of a child. In situations involving the consumption of alcohol, we often see restrictions that a parent will not drink to the point of intoxication. That, in itself, is subjective. When does an individual become intoxicated? When does alcohol impede the capacity to parent? Some terms of supervision require complete abstention from alcohol consumption during and 12 hours prior to the time a parent is in a caregiving role for a child. Such conditions improve the likelihood that a parent will have full capacity. Monitoring compliance with such a condition can be difficult.
[7] Use of marijuana is equally problematic. How much marijuana can a person consume before their capacity to parent is negatively affected? Mother claims that she uses marijuana three times per week to help her get to sleep. She therefore admits that it has a sedative effect upon her. Even though the children might be in bed, the mother still remains in a caregiving role and young children require that a parent be responsive to their needs throughout the night. The society has not requested a term that the mother would not use marijuana at all, but that she have someone else as a substitute caregiver on those occasions that she has decided to use marijuana. The fact that the federal government has plans to legalize marijuana, in my view, has no impact on this issue. The use of marijuana, like alcohol, whether legalized or not, has a negative effect on a parent’s capacity to properly care for the needs of a child. The fact that marijuana is still an illegal substance increases my concern regarding the mother's involvement in illegal activity in purchasing the drug and use of a substance that is not controlled or regulated.
[8] The society’s position requiring an alternate caregiver when the mother uses marijuana is reasonable and will be imposed.
Corporal Punishment
[9] The society takes the position that no corporal punishment of any child should be allowed. This is the internal policy of the society. The status of the law in relation to corporal punishment by parents however is not as restrictive. Section 43 of the Criminal Code, R.S.C., 1985, c. C-46 still creates an exception that allows parents to use physical punishment as a form of discipline.
[10] The Supreme Court of Canada in Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4, [2004] 1 S.C.R. 76, concluded that s. 43 of the Criminal Code does not offend s. 7 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. I agree with Justice Sheilagh O'Connell of the Ontario Court of Justice in Children’s Aid Society of Halton Region v O.(J.), 2013 ONCJ 546 at paragraph 37:
The use of physical discipline was discussed by the Supreme Court of Canada in Canadian Foundation for Children, Youth & the Law v. Canada (Attorney General), 2004 SCC 4, [2004] 1 S.C.R. 76 (S.C.C.). Although a criminal case, the court's comments about the use of physical discipline are applicable in child protection proceedings.
[11] Most instructive for our purposes is the court’s explanation behind the conclusion that s. 43 is not unduly vague because it satisfies the constitutional requirement for precision by delineating a risk zone for criminal sanction. For the majority, McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache and LeBel JJ. wrote:
The purpose of s. 43 is to delineate a sphere of non-criminal conduct within the larger realm of common assault. It must, as we have seen, do this in a way that permits people to know when they are entering a zone of risk of criminal sanction and that avoids ad hoc discretionary decision making by law enforcement officials. People must be able to assess when conduct approaches the boundaries of the sphere that s. 43 provides.
Section 43 delineates who may access its sphere with considerable precision. The terms “schoolteacher” and “parent” are clear. The phrase “person standing in the place of a parent” has been held by the courts to indicate an individual who has assumed “all the obligations of parenthood”: Ogg-Moss, supra, at p. 190 (emphasis in original).
Section 43 identifies less precisely what conduct falls within its sphere. It defines this conduct in two ways. The first is by the requirement that the force be “by way of correction”. The second is by the requirement that the force be “reasonable under the circumstances”.
I turn first to the requirement that the force be “by way of correction”.
First, the person applying the force must have intended it to be for educative or corrective purposes: Ogg-Moss, supra, at p. 193. Accordingly, s. 43 cannot exculpate outbursts of violence against a child motivated by anger or animated by frustration. It admits into its sphere of immunity only sober, reasoned uses of force that address the actual behaviour of the child and are designed to restrain, control or express some symbolic disapproval of his or her behaviour.
Second, the child must be capable of benefiting from the correction. This requires the capacity to learn and the possibility of successful correction. Force against children under two cannot be corrective, since on the evidence they are incapable of understanding why they are hit (trial decision (2000), 49 O.R. (3d) 662, at para. 17). A child may also be incapable of learning from the application of force because of disability or some other contextual factor. In these cases, force will not be “corrective” and will not fall within the sphere of immunity provided by s. 43.
The second requirement of s. 43 is that the force be “reasonable under the circumstances”.
The first limitation arises from the behaviour for which s. 43 provides an exemption, simple non-consensual application of force. Section 43 does not exempt from criminal sanction conduct that causes harm or raises a reasonable prospect of harm. It can be invoked only in cases of non-consensual application of force that results neither in harm nor in the prospect of bodily harm. This limits its operation to the mildest forms of assault. People must know that if their conduct raises an apprehension of bodily harm they cannot rely on s. 43. Similarly, police officers and judges must know that the defence cannot be raised in such circumstances.
Within this limited area of application, further precision on what is reasonable under the circumstances may be derived from international treaty obligations. Statutes should be construed to comply with Canada’s international obligations: Ordon Estate v. Grail, [1998] 3 S.C.R. 437, at para. 137. Canada’s international commitments confirm that physical correction that either harms or degrades a child is unreasonable.
From these international obligations, it follows that what is “reasonable under the circumstances” will seek to avoid harm to the child and will never include cruel, inhuman or degrading treatment...
Section 43’s ambit is further defined by the direction to consider the circumstances under which corrective force is used. National and international precedents have set out factors to be considered. Article 3 of the European Convention on Human Rights, 213 U.N.T.S. 221, forbids inhuman and degrading treatment. The European Court of Human Rights, in determining whether parental treatment of a child was severe enough to fall within the scope of Article 3, held that assessment must take account of “all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical and mental effects and, in some instances, the sex, age and state of health of the victim”: Eur. Court H.R., A. v. United Kingdom, judgment of 23 September 1998, Reports of Judgments and Decisions 1998-VI, p. 2699. These factors properly focus on the prospective effect of the corrective force upon the child, as required by s. 43...
Determining what is “reasonable under the circumstances” in the case of child discipline is also assisted by social consensus and expert evidence on what constitutes reasonable corrective discipline…It is wrong for caregivers or judges to apply their own subjective notions of what is reasonable; s. 43 demands an objective appraisal based on current learning and consensus.
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 behaviour. 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.
Contemporary social consensus is that, while teachers may sometimes use corrective force to remove children from classrooms or secure compliance with instructions, the use of corporal punishment by teachers is not acceptable…This consensus is consistent with Canada’s international obligations, given the findings of the Human Rights Committee of the United Nations noted above. Section 43 will protect a teacher who uses reasonable, corrective force to restrain or remove a child in appropriate circumstances.
Finally, judicial interpretation may assist in defining “reasonable under the circumstances” under s. 43…This case, and those that build on it, may permit a more uniform approach to “reasonable under the circumstances” than has prevailed in the past. Again, the issue is not whether s. 43 has provided enough guidance in the past, but whether it expresses a standard that can be given a core meaning in tune with contemporary consensus.
When these considerations are taken together, a solid core of meaning emerges for “reasonable under the circumstances”, sufficient to establish a zone in which discipline risks criminal sanction. Generally, s. 43 exempts from criminal sanction only minor corrective force of a transitory and trifling nature. On the basis of current expert consensus, it does not apply to corporal punishment of children under two or teenagers. Degrading, inhuman or harmful conduct is not protected. Discipline by the use of objects or blows or slaps to the head is unreasonable. 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, a consistent picture emerges of the area covered by s. 43. It is wrong for law enforcement officers or judges to apply their own subjective views of what is “reasonable under the circumstances”; the test is objective. The question must be considered in context and in light of all the circumstances of the case. The gravity of the precipitating event is not relevant.
[12] This analysis by the Supreme Court of Canada, in my view, has helped identify the general parameters of acceptable corporal punishment by parents. The following principles can be extrapolated from this decision to apply to child protection law:
- The only individuals permitted to use corporal punishment are parents or persons who have assumed all the obligations of parenthood. As such, a nanny or relative assuming temporary care of a child should not be permitted to use corporal punishment.
- Corporal punishment must be intended for educative or corrective purposes. As such, outbursts of violence against a child motivated by anger or animated by frustration should not be tolerated. "Only sober, reasoned uses of force that address the actual behaviour of the child and are designed to restrain, control or express some symbolic disapproval of his or her behaviour" are permissible as corporal punishment.
- The child must be capable of benefiting from the correction. This requires the capacity to learn and the possibility of successful correction.
- Force against children under two cannot be corrective, since on the evidence they are incapable of understanding why they are hit.
- Corporal punishment of teenagers is harmful, because it can induce aggressive or antisocial behaviour.
- Corporal punishment must be “reasonable under the circumstances”. Assessment of what is reasonable under the circumstances includes consideration of the following factors: i. Did the non-consensual application of force result in harm or in the prospect of bodily harm? If so, it was not reasonable. Corporal punishment is limited to the mildest forms of assault. ii. Corporal punishment will never include cruel, inhuman or degrading treatment of a child. iii. What was the nature and context of the treatment, its duration, its physical and mental effects and, in some instances, the sex, age and state of health of the victim? iv. What is the current social consensus on what is reasonable? It is wrong for caregivers or judges to apply their own subjective notions of what is reasonable based on different backgrounds; an objective appraisal based on current learning and consensus is required. Substantial consensus, particularly when supported by expert evidence, can provide guidance and reduce the danger of arbitrary, subjective decision making. The court should acknowledge the evolutive nature of the standard of reasonableness, and not give undue authority to outdated conceptions of reasonable correction. v. Corporal punishment using objects, such as rulers or belts, is physically and emotionally harmful and therefore not reasonable. vi. Corporal punishment which involves slaps or blows to the head is harmful and therefore not reasonable.
[13] It is my view that the local Children’s Aid Society does not define the current social consensus on what is reasonable. Their policy of an absolute ban on all forms of corporal punishment in all circumstances, in my view, represents a position that does not represent substantial contemporary consensus on the issue. Such a position is overly invasive into the autonomy and integrity of the family unit. This is not to say that in certain circumstances such a condition may be appropriate. In my view, those circumstances should be limited to cases where it has been shown that parents have engaged in a pattern of harmful over-discipline that is not reasonable under the circumstances.
[14] The mother in the present case denies the allegation made by the child that she used a broom stick to inflict punishment. Use of any instrument is clearly beyond the scope of reasonable discipline in the circumstances. If she engaged in such practice it was inappropriate and should not be continued. I do not believe, however, that a complete ban on any physical discipline is required in these circumstances. Such a condition here is overreaching. The term of supervision that requires compliance with the application of the Supreme Court of Canada analysis of s. 43 of the Criminal Code and the principles as summarized above will be sufficient protection for the child from such punishment at the hands of the mother.
Should the child be subject to the terms and conditions of a supervision order?
[15] The mother argues that certain terms of supervision should apply to both the child and her. She states that she will better be able to comply with these conditions if, in fact, the child is also legally required to comply.
[16] Section 57(8) of the Child and Family Services Act, R.S.O. 1990, c. C. 11 does allow the court to impose terms of supervision on a child:
- If the court makes a supervision order under paragraph 1 of subsection (1), the court may impose,
(a) reasonable terms and conditions relating to the child’s care and supervision;
(b) reasonable terms and conditions on,
(i) the child’s parent,
(ii) the person who will have care and custody of the child under the order,
(iii) the child, and
(iv) any other person, other than a foster parent, who is putting forward or would participate in a plan for the care and custody of or access to the child; and
(c) reasonable terms and conditions on the society that will supervise the placement, but shall not require the society to provide financial assistance or purchase any goods or services; 2006, c. 5, s. 13 (5).
[17] In some circumstances, the rebellious behaviors of a 15 or 16-year-old child may be the focus of the society's involvement. Parent/teen conflict often results from unmanageable teen behavior. Such is not the case here. This is a 9-year-old child and the mother seeks to impose upon the child terms such as agreeing to attend school, meeting with the social worker, attending for medical appointments and attending counseling. There is no history of the child refusing to attend school, medical appointments for counseling or refusing to meet with the social worker. I believe it is setting a dangerous precedent to duplicate terms of supervision and imposing them upon a child simply to make life easier for a parent. In my view, this increases the likelihood that a parent may deflect responsibility for compliance with these terms toward the child. There must be a history of non-compliance with very specific expectations of a teenage child before terms of supervision should be imposed upon them. The likelihood of the court imposing terms of supervision upon a child increases with the age of the child.
Access between the child and aunt
[18] The child resided with his aunt, TB, following the first appearance of the protection application when he was apprehended on June 16, 2016. He continued his placement with her until this matter was heard on September 30, 2016. However, the court was advised by the mother that TB had recently moved to Brantford leaving her 19-year-old daughter, PB, in charge of the child. Both the society and the Office of the Children’s Lawyer (OCL) were in support of an order that the mother facilitate at least weekly access between the child and his aunt, TB. The relationship between the mother and TB is strained and the mother is opposed to an order that she be required to facilitate access. She argues that the decision about who the child visits with, and how often, should remain in her control as his parent. The OCL gave evidence that the child has a positive relationship with his aunt and is afraid that his mother will not allow access when he returns to live with his mother.
[19] It is my view that parents need to be given the liberty to decide which extended family members will be involved with the life of the child and to what extent. The court should not interfere with the autonomy of the mother to make decisions regarding access to extended family or other individuals. Instead, I will require the mother to consider the child's views regarding his desire to maintain a relationship with his aunt and arrange such access as she deems to be in his best interest.
There will be no order as to costs.
The Honourable Mr. Justice P.W. Nicholson