Physical punishment, or ‘spanking’, involves an action taken by a parent, teacher, or caregiver that is intended to cause discomfort to a child/children.
Generally, the purpose of physical punishment is to discipline or remedy the child’s bad behaviour and discourage them from doing it again.
This article seeks to provide insight for parents, teachers, and caregivers on the lawfulness of using physical punishment to discipline children under criminal law as well as family law in BC.
Is Physical Discipline a Criminal Offense?
Section 43 of the Criminal Code of Canada(Criminal Code) protects parents, teachers and caregivers from criminal charges for the reasonable use of physical punishment to discipline a child or student.
Simply put, this means that parents and caregivers of a child are legally justified to physically punish children, provided that the punishment is limited to:
- minor force;
- with only a hand;
- by non-frustrated parents or teachers; and
- only to children between the ages of 2 and 12 years old.
In 2004, the Supreme Court of Canada heard a case in which the Canadian Foundation for Children, Youth and the Law challenged the constitutionality of section 43 of the Criminal Code.
It was argued that section 43 infringed upon the child’s right to equality, security, and to be protected from cruel and unusual punishment.
The Supreme Court of Canada held that the legislative provisions allowing teachers, parents, and persons standing in the place of parents to use reasonable force for discipline is constitutionally valid.
In its judgement, the Supreme Court of Canada set out the following guidelines for the use of physical discipline:
- The force used by parents or caregivers must be minor and impermanent and must be used to discipline the child.
- Teachers aren’t permitted to use physical force to discipline a student. They are, however, allowed to use reasonable force in circumstances that are deemed appropriate such as when a child needs to be removed from a classroom.
- A child under the age of 2 cannot be disciplined using physical force because they are not sufficiently developed to understand the purpose of physical punishment. A child above the age of 12 similarly cannot be disciplined using physical force as it is deemed that such discipline can lead to aggressive or antisocial behaviour.
- A parent or caregiver should not use physical force in anger or in a frustrated state.
- Physical force must be limited to the use of the parent or caregiver’s hand. It is not acceptable to make use of physical objects such as rulers or belts. It is also not permitted to hit the child on his/her head and/or face.
- The physical discipline cannot be inhumane or degrading and should not result in serious harm.
- If the child/children are vulnerable due to a disability or impairment and are not able to learn from their behaviour in a particular situation, then physical punishment is not legally justified.
- The significance of the child’s disobedience does not affect the determination of reasonableness. In other words, regardless of how the child misbehaved, the force must remain minor in nature.
Physical discipline that is outside of the guidelines set by the Supreme Court of Canada is considered to be a crime, and the parent, teacher or caregiver will not be protected by section 43 of the Criminal Code.
Physical Discipline and Family Law
While the Supreme Court of Canada has made it clear that physical punishment, subject to certain limitations, is not a criminal offence, you may be wondering how physical punishment is handled in Family Law cases.
The primary consideration in any Family Law matter concerning a child/children is that of their best interests. In other words, whether the discipline remained within the limitations imposed by the Criminal Code or not, is not a consideration.
Rather, the consideration in Family Law cases is whether the child is being seriously harmed or at risk of being seriously harmed. Therefore in a Family Law context, any decision affecting a child must be made in his/her best interests, which includes safeguarding that child from harm.
Because of the above, it is likely that a court will consider the use of physical discipline as evidence of the parent’s childcare approach as well as its effect on the child/children.
As a result of section 43 of the Criminal Code, “spanking” or physical discipline is not a criminal offence, provided that the action abides by the constraints imposed by the Supreme Court of Canada.
It is worth noting, however, that in Family Law cases, the court is more concerned with action that is in the child’s best interests instead of whether it violates criminal legislation. Thus, it may be that in some circumstances, physical punishment can be deemed abuse. In both criminal and Family Law contexts, when physical punishment is considered unreasonable, the Ministry of Family and Children Development (MCFD) will be involved since their role is to protect the child/children.
If you require more information regarding your and your child/children’s legal rights against a physically abusive co-parent, contact our family law lawyers today.
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