The Positive Parenting Project: A Collaborative Local Initiative in the Therapeutic Justice Movement

“Spare the rod, spoil the child”, the old adage went. In Canada, we have come a long way from that belief in child-rearing, even with the availability of section 43 of the Criminal Code to parents/teachers or others standing in the place of a parent.

To raise children, given what research into child development indicates, requires incredible expertise and ongoing education. Early child educators, academics and parenting experts advise parents how best to navigate this complicated road. In my experience, many of those who are charged with over-discipline of their children did not have a great example of parenting themselves, had not received current important information about child development/rearing and mainly, come from disadvantaged single parent families. One important premise of the parenting project is this: the parents, charged with child abuse, love their children and reunification of the family unit is the goal.

There is tension between the family and criminal court systems. If reunification of the family unit is the goal in the family process, child protection workers working closely with the family try to reunite parent(s) and child as early as possible which fundamentally conflicts with the timelines of the criminal justice system. The criminal justice system makes people wait so that due process protections are achieved. Notwithstanding the new Jordan/Cody guidelines, this reality is cold comfort for the child who has to testify AND is separated from his/her parent. While the parenting relationship will last longer than the criminal justice process, the impacts of the criminal justice system are extensive and lasting.

The parenting project supports improvement in the relationship between parent and child into the future. The goal is to reunite parent and child, without the child having to testify, and give the parent more parenting support tools to help them along this road as his/her child ages. Everyone wins: the child received the help that s/he was asking for by having the physical discipline stop and avoided the stress of testifying, the parent received support in an improved relationship with his/her child without resorting to physical discipline and finally, the community can rest assured that safety was the paramount concern given the extensive consultation that takes place with each file.

The Launch of the Idea

Nothing has changed my legal practice more than becoming a parent. I saw how concepts of attachment, support and appropriate discipline are important for all parents to understand but opportunity to be conversant in best practices is limited. I read many of those parenting books and listened with great interest to the parenting experts. I also learned through discussions with other parents and consultation with experts through my prosecution of files. I was convinced that parenting education could be beneficial for those charged with low level child abuse.

The Therapeutic Practice

We have seen the rise of the therapeutic practice in criminal law—drug courts, domestic violence courts, Gladue courts and mental health courts are the norm rather than the exception[1] . Therapeutic justice[2] arose because there was dissatisfaction with the current adversarial system for all cases. Like the adversarial system, the minimization of risk in making a mistake and protection of the community are twin goals of the therapeutic justice movement. To be successful, it was critical to have the support of the judiciary[3] . We were lucky to have their support in this project.

The implications of making a mistake are serious. The parenting project takes account of this tension through extensive consultation with the police, child protection workers, duty counsel, defence counsel, child protection lawyers and the service agencies assisting in the parenting education; this consultation goes far beyond the examination allowing accused persons admission to the domestic early intervention program[4]. A referral to the parenting project is based upon information from those who know the family beyond the allegations and the collaboration between the family and criminal systems ensures that the quality of the information is very high[5].

In this article, we[6] explain the execution of the parenting project, an initiative started in the Scarborough courthouse as a pilot in April 2013[7]. Four years later, this project has gained acceptance with its expansion to the North York court house in 2014. The participation of the judiciary was critical; they were integral in bringing everyone together to discuss the issues, problem-solve and assist in reaching consensus for the project to operate[8].

Our parenting project steering committee had the following experts[9]: criminal and family judges, child protection lawyers from the local child protection agencies, police from the Youth and Family Violence units of the three divisions in Scarborough, representatives from community service agencies, defence lawyer, duty counsel, a family lawyer and myself, as representative of the local Crown office. The group drafted and agreed upon protocols.

Points of commonality were identified because, for the most part, both systems were involved in the same cases. The child protection agencies were already aware of the parenting programs and were well-positioned to make referrals for individual parents and families. As soon as charges were laid, the police could advise the Crown so that bail terms could be crafted to allow for early reunification if referral to the project was approved.

Our group identified a myriad of issues. The judges provided guidance on how to resolve them. Madame Justices Marin and Waldman led the discussions around the resolution of issues like the sharing of information between the family and criminal systems, the acceptance of responsibility and the resolution of individual cases. Major outcomes of this process included trust and increased communication between the family and criminal systems.[10]

Identifying the stream of file was also important because only one system needed to supervise. Bail issues were addressed early on so that the contact between parent and child could take place under some level of monitoring and the disruption to the family unit minimized[11]; otherwise, clients would have to wait until the first appearance or longer for bail issues to be addressed.

Charges were stayed but as we learned later, that could impact a vulnerable sector screening so that a parent may not be able to participate as a volunteer in his/her child’s school excursions and the like. We now withdraw the charges[12].

Our group met during the pilot and a few times after the pilot. These meetings were a good way to ensure that the project is still meeting its original objective, whether any adjustment was required and that the protocols were still relevant[13].

The Future

Now four years later, there needs to be research on the efficacy of the project instead of regaling in the anecdotal success stories about which we hear. One of the major criticisms of therapeutic justice programs is the lack of research supporting them[14]. We could learn from the research into these programs by other jurisdictions.

Other Project Members

Madame Justice Sally Marin:

At the time the parenting project was first proposed, I, on behalf of the Scarborough judiciary at the time, was immediately supportive. The therapeutic approach adopted in certain domestic violence matters appeared to be largely successful in deterring recidivism through counselling while promoting family reunification at an early stage in the proceedings. While family violence is always disruptive, particularly once the criminal justice system becomes involved, the PARS program demonstrated that culturally-sensitive education of the offender can potentially minimize the impact of charges on the family unit. I believed that there was a place for a similar restorative justice approach to family violence directed at children, subject to appropriate safeguards. The reality of the very diverse Scarborough population is that individuals may not be acculturated to Canadian parenting standards and resort to inappropriate action in the interests of discipline or for other reasons intrinsic to family distress. Intensive counselling and monitoring of the offender, initiated as quickly as possible after the laying of charges and accompanied by early release on bail, could help the family heal, regardless of whether the goal is to reunify or separate/divorce. It could also reduce the guilt and blame children assume when the family is torn apart by the intervention of the police or other authorities responsible for child protection. The intersect of criminal charges with any Family Court proceedings could be addressed in a more holistic manner.

The identification of appropriate cases for this approach was critical to its success. The offences could not be sexual in nature or seriously violent. The offender should not have a criminal record for sexual or violent offences. Other criteria would be developed by the Crown Attorneys assigned to the project, with input from the police and counselling agencies. Each case was to be considered individually. It was anticipated that there would be relatively few cases that would be appropriate for therapeutic diversion.

Equally key was the commitment of all players to the project. All stakeholders had to identify primary contacts who understood the objectives of the parenting project and who were prepared to commit to each case when and as it arose. Independent legal advice had to be provided to the offender. Counselling had to be available as soon as possible despite strained resources. A plan for bail had to be devised quickly, one that would adequately protect the child(ren) but also facilitate intensive counselling and the reunification of the family, where appropriate. Cohesion of family and criminal proceedings would have to be arranged. The judiciary would have to be supportive of the program’s goals but also safeguard the competing interests at play and ultimately be the final decision-maker at the time of disposition. Judicial independence could not be compromised. Many meetings were required to finalize a protocol that satisfied the diverse objectives of the various participants in this project.

Mr. Justice Harvey Brownstone

Having presided in both family and criminal courts for over 22 years, I can say without hesitation that the Positive Parenting Project is the most significant and impactful innovation I have seen in my judicial career. When dealing with domestic violence – particularly violence by parents directed at their children – the paramountcy of focusing on the best interests of the children cannot be overstated if we are to facilitate their healing. The criminal justice system’s traditional approach in parental violence cases – stressing isolation, no contact, alienation, stigmatization and punishment – often causes irreparable harm to children because, more often than not, it disregards the child’s therapeutic needs: the need to process what has happened in a non-threatening way; the need to maintain important family relationships with the non-accused family members (ie the non-accused parent, grandparents and siblings) who support the accused’s position for a variety of reasons; the need to confront and forgive; the need for family reintegration wherever possible; and the need to heal and move on.

Requiring children to testify against their parents often re-traumatizes them by placing them in an impossible position as a result of unconscionable family pressures, resulting in frequent miscarriages of justice due to recantations. Moreover, the traditional “one size fits all” criminal justice system approach frequently works at odds with the parallel process occurring in family court through child protection legislation. Sometimes the no-contact provisions of an offender’s bail and/or probation are obstacles to the course of treatment prescribed by the mental health professionals servicing the family.

The Positive Parenting Project provides a holistic, therapeutic, inclusive, multi-faceted problem-solving mechanism that is individually designed to meet the needs of each family, and which coordinates the efforts of the police, Crown Attorney’s office, Children’s Aid Society, family counselling specialists and presiding judge, to ensure that parents are held accountable for their conduct while at the same time ensuring proactive parent education and therapeutic family counselling for all affected family members to prevent recidivism and promote healing and reconciliation. In my opinion the Positive Parenting Project should be operating in every criminal court.

Linda Hofbauer, Senior Counsel for Toronto Children’s Aid Society

As Senior Counsel and Manager of Legal Services (Scarborough Branch) with the Children’s Aid Society of Toronto (CAST) at the time, I was excited and energized to join the committee from which the Positive Parenting Project was created. Together we worked towards developing a therapeutic alternative to dealing with cases where criminal cases intersected with child welfare involvement in specified cases of child abuse. Having been counsel with CAST for over 25 years, there were typical barriers which existed prior to the Positive Parenting Project when working voluntarily with families or moving cases through the child welfare court process. In either scenario, if a referral was made that a child was in need of protection as a result of physical violence against the child, and criminal charges resulted against a caregiver, the focus of the Society’s work with the family often came to a halt. Frequently, there were criminal bail restrictions between the offender and the child victim; pressures on the offender to refrain from engaging, participating, communicating with their social worker on advice of criminal counsel; pressures on other family members who had to “choose” between the offender and victim; unintended consequences involving the child victim’s stability, mental health and relationships with the offender and other family members; and other complications which stalled counselling and other therapies towards reunification (where possible). Child welfare courts were often held up for a very long time. The social workers were challenged in their ability to work with the families and the families’ networks to create strong, sustainable and culturally-appropriate safety plans to address risk.

However, the implementation of the Positive Parenting Program brought change, provided the appropriate criteria were met. The end goal of reuniting families where the offender has participated in appropriate counselling by virtue of early intervention, before the barriers took hold, has strengthened families and, ultimately, provided safer environments for children. This diversionary therapeutic alternative has been a huge success. Feedback, consistently received over the 4 years since it began, continues to support the objectives and benefits of the Positive Parenting Project.

Yolande Edwards, Manager of the Scarborough Criminal Duty Counsel office

Since its inception, duty counsel has assisted many clients through the program and I stand to be corrected if any have said that they did not receive some benefit from it. In some cases clients indicated that they wanted to continue classes even when there cases were completed, because it was not only beneficial to them but to their entire family.

What the Parenting Project addressed was to establish a non- criminal approach to cultural norms of discipline. It not only supported to keep the family unit intact, educate the parents/ caregivers about acceptable discipline but also avoided harming the parents with a criminal record, which can have detrimental long term consequences.

Not only was the project innovative in its approach, but it was very humane and holistic; elements that often appear to be lacking with justice system. While I have observed much recidivism with other programs and projects over the years, I don’t recall any recidivism since the project’s inception. This can be attributed to the dedication of all the stakeholders, the careful screening an appropriateness of the cases, the high quality of the counseling provided and the willingness of the parents/clients to participate in the program.

Given its success, its relevance and the need, I can only hope that the project continues and serious consideration be given to have the project implemented throughout all jurisdictions.

Detective Lee Poczak, Family and Youth Violence Office, 41 Division

When the vision of the Positive Parenting Project was presented to me, I was immediately interested in supporting the concept and offering assistance throughout the process and implementation. The Project has created a strong systemic process consisting of various Community and Government agencies who all collaboratively work together having common goals focussing on the child. The significant aspect of the Project is that it reduces the impact to a child’s health and emotional wellbeing when Criminal Charges are laid against the offender. A criminal case that is diverted to this Project eliminates the child from attending court, re-victimizing them if required to testify and prohibiting contact with the offender for a lengthy period. As a result of the participating agencies working together, this Project also addresses issues within the family unit to work towards repairing and creating an improved long term family focused environment. While the priority of this Project is to help families, a secondary benefit is that it reduces police expenditure, court costs as well as collateral costs to the family. This Project also helps to expedite a sanctioned and agreeable positive outcome or resolution in concluding the Criminal Case in a timely manner which ultimately benefits the child. Since the point in time that this Project has been operating, I am not aware of any Criminal Cases that have been involved in the Project where there has been recidivism. I am in full support of this Project and believe in its objectives and success.

By Liesha Earle, Assistant Crown Attorney, and other members of the Positive Parenting Project Steering Committee[1]

The views expressed above are solely those of the author(s). For more information about this project, please contact the author.

______________________________________

Appendix 1: Process of Referral and Acceptance

Footnotes:

[1] See note 10.

[1] Kent W. Roach, Matthew S. Estabrooks, Martha Shaffer, Gilles Renaud, “180—A Criminal or Therapeutic Justice System? Examining Specialized Treatment Courts” 2017 64 Criminal Law Quarterly 180.

[2] JoAnn Miller and Donald C. Johnson, Problem Solving Courts: New Approaches to Criminal Justice 2009 Rowman and Littlefield Publishers Inc, Lanham, Maryland. See also James L Nolan Jr. Legal Accents, Legal Borrowing 2009 Princeton, Princeton University Press and Jan Donoghue, Transforming Criminal Justice? Problem-solving and court specialisation, 2014 Routledge in Oxon and New York

[3] Judging in a Therapeutic Key: Therapeutic Jurisprudence and the Courts edited by Bruce J. Winick and David B. Wexler, 2003 Carolina Academic Press, Durham, North Carolina.

[4] Referrals to the DV program typically do not involve extensive discussions with agencies that work with the family but stem from police historical information about the couple.

[5] I want to thank Tony Loparco, former Crown Attorney for Scarborough, and Mr. Justice Timothy Lipson, Regional Justice for the Toronto Regional, for supporting my work on this project.

[6] I asked members of the parenting project who wanted to participate in disclosing their thoughts about the process and about the project itself to contribute paragraphs. Not all who were involved in the development chose to participate in this article but I am extremely grateful to the wisdom and guidance each of them brought to the discussions when the project was being designed.

[7] See a description of the process as an appendix to this article.

[8] I am especially grateful to Madame Justice Wong who brought all the players to the table before she left to preside in the College Park courthouse.

[9] The steering committee members were/are as some have left since the project launched: Madame Justice Marin+, the late Madame Justice Waldman+, Mr. Justice Brownstone, Madame Justice Paulseth, Mr. Justice Otter, Nadia Liva+ (defence counsel), David Miller (family counsel)+, Yolande Edwards (supervisor for duty counsel)+, Linda Hofbauer (counsel for CAS)+, Chris Andrikakis (counsel of CCAS)+, Adit Somers-Wasglass+ (counsel for Native Family and Child), Landy Anderson+, (Native Family and Child), Gord Cone+ (Aisling Discoveries), Christopher Brown+ (East Metro Youth Services), Jeanine Duncan+ (Police 43 Youth and Family Violence), Lee Poczak+ (41 Police Youth and Family Violence), Janice MacDonald+ (42 Youth and Family Violence), Pat Sisson (CAS), Michelle Lewis (CAS), Cory Hedgeman (police), Ann-Marie Tupling (police), Dominique Kennedy (Crown*), Betty Vavougios (Crown)* (more Crown* additions in 2016 because we’ve embarked on vertical file management after launching this project),+ original steering committee

[10] . I will forever be grateful to the late Madame Justice Waldman for taking me on a tour of the family division in North York and for being a pragmatic problem-solver over issues that arose during the discussions. I am also grateful to Madame Justice Marin who chaired the committee, helping devise the solutions both systems could support.

[11] On the same day as a family court proceeding, Judge Waldman directed a family client who had been charged with assaulting her autistic son to speak with duty counsel and myself so that her son would not be institutionalized during the criminal proceedings—CAS, police and family court supported contact with the offending parent and she was supported with parenting assistance through the Geneva Centre. CAS and family court took over supervision of the re-integration of the family in the best interests of the child.

[12] I thank Nadia Liva for bringing this to our attention. We also decided as a group that resolving the file with peace bond may have a detrimental unintended impact for the family court file if parents were in a custodial dispute and could also set up a difficult power dynamic in the parent relationship going forward.

[13] I thank Justices Brownstone and Otter for taking up the judicial leadership of this project after the pilot was completed.

[14] Jane Donoghue ibid pages 13-15 and 69, James Nolan ibid pp. 76-108 and Michael Rempel, director for Center for Court Innovation, « Evidence-Based Strategies for working with offenders » April 2014 www.courtinnovation.org

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