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A Family Lawyer’s Role Is (Not) to Minimize Conflict

Do family law lawyers have an obligation to minimize conflict? It seems obvious that given the stakes involved in family law matters, especially where there is family violence or children, that a lawyer’s role ought to include minimizing conflict; however, that idea is not as straightforward as it sounds. A family lawyer does have an obligation to advise her client on the impact of actions that inflate conflict; but a lawyer’s role properly understood, does not include an objective of minimizing conflict. This may seem like splitting hairs, but it is an important distinction.

Minimizing Conflict

The BC Family Law Act (“BC FLA”), Rules of Court, and guidance from the BC Law Society all aim to ensure family law proceedings minimize conflict. The BC FLA requires a court to “ensure that a proceeding under this Act is conducted in a manner that strives to minimize conflict, and if appropriate, promote cooperation, by the parties” (s 199(1)(b)(i)). An object of the BC Supreme Court Family Rules is to “help parties resolve the legal issues … in a way that will minimize conflict and promote cooperation between the parties” (R 1-3(1)(a)(ii)).

As an aside, the more time I spend with the BC FLA, the more I admire it. It really is a remarkable piece of legislation in the way it tries to guide families towards a less conflictual resolution to their dispute. The Act encourages parties to make their own decisions, and it aims for them to do so in a way that is less conflictual, responsive to family violence, and mindful of children’s interests. That said, Susan Boyd and Ruben Lindy found that BC courts are still relying on “problematic assumptions about family violence”,[1] indicating that judicial and legal education is still falling short of effectively training the legal profession about family violence.

In 2013, the British Columbia Law Society introduced Common-sense Guidelines for Family Law Lawyers (“LSBC Guidelines”). The first suggestion is that lawyers should be “constructive, respectful and seek to minimize conflict and should encourage clients to do likewise.” The guidelines are only voluntary – presumably because many of them can only be suggestions, like minimizing conflict.

It is not uncommon for judges hearing family law matters to school lawyers about the need to minimize conflict. For example, in Jackson v Jackson, 2008 CanLii 3222 (ON SC), in the context of a high conflict dispute, Justice Murray held that a good lawyer will “attempt to minimize conflict while achieving appropriate results for their clients informed by the applicable legal principles including, the best interests of the children” (at para 11). More recently, in Alsawwah v Afifi, 2020 ONSC 2883, Justice Kurz held that a lawyer’s “role as advocate should often be as rational counsel not flame-throwing propagandist. Where the client wants to raise the emotional stakes with invective and personal attack, that lawyer must often counsel restraint” (at para 107).

The idea that family law should aim to minimize conflict is properly reflected in policy objectives. For example, one of the guiding principles of the Cromwell Report is to “minimize conflict”. The Report is authored by the Action Committee on Access to Justice in Civil and Family Matters. They made recommendations for comprehensive family law reform including increasing the use of consensual dispute resolution processes, and for family law to be made “simpler and offer more guidance by way of rules and presumptions” (Recommendations #2, #7, #8, #9, #25, #27, #29 and #31).

Consensual dispute resolution processes are generally less adversarial and so lawyers can try to minimize conflict by encouraging parties to find a resolution that will meet both parties interests. Ideally, trying to find a settlement is a less conflictual path than one designed to test legal arguments, weigh facts, and determine an objective resolution provided by the law. In addition, less conflictual disputes are resolved faster and last longer, thereby reducing ongoing conflict.[2]

Moreover, rules and presumptions can be helpful in reducing conflict by making the law more predictable. When it is easier to determine what a court would do, it makes it easier for parties to resolve their own dispute, thus reducing conflict. Predictability makes outcomes more consistent, which also increases the appearance of fairness.[3] For example, the Federal Child Support Guidelines were introduced in 1997 in part to “reduce conflict and tension between spouses by making the calculation of child support orders more objective”. (s 1(b)) Similarly, the Spousal Support Advisory Guidelines, and the introduction of presumptions into decisions about the relocation of a child’s place of residence (Bill C-78 amending the Divorce Act) both work to reduce discretion in the law and with it conflict over what the law provides. In addition, the objective of minimizing conflict can also be seen in evidence law relevant to family disputes,[4] and in family law reforms in Manitoba.[5] The family law justice system is increasingly designed to reduce discretion and encourage settlement, thereby minimizing conflict.

Minimizing conflict is an obvious good where there is family violence or children. We know that exposure to conflict is harmful for all children regardless of age. We know that exacerbating the conflict heightens the risk where there is family violence. These are two crucial reasons to reduce opportunities for conflict within the law, and for reforms to push disputes towards less conflictual dispute resolution processes. Minimizing conflict can be a good and healthy policy objective informing the law, but it is not a lawyer’s objective.

To be clear, I am not in any way endorsing lawyers (and we know they exist) who are intentionally and even dangerously inflammatory. If we were to review all of the facts of those cases, I would venture to guess that most often those lawyers were acting in violation of their professional obligations. When we say we want lawyers to be better, to be part of the solution instead of the problem, we are often responding to bad lawyering. But just as I am saying that the solicitor-client relationship does not require a lawyer to fight with such ferocity that she violates her professional obligations, the relationship also does not permit her to sacrifice her client’s interests.

The Limits on a Lawyer’s Conduct

A lawyer’s role is to pursue her client’s interests within the bounds of legality. She cannot pursue something unlawful, motivated by malice (R 5.1-2(a)), or that is dishonest (R 5.1-2(b)). A lawyer cannot commence a useless legal proceeding, (R 3.2-4) or one designed to abuse or misuse the legal system.[6] Even though the profession’s push towards civility was decelerated by Groia, a lawyer is still required to treat her colleagues and their clients with respect. She must be civil with everyone, and approach the law in good faith (R 3.2-1, R 5.1-5 and R 7.2-1). A lawyer cannot provide access to the justice system for a client whose motivation is to work around the law, or intentionally cause harm. These rules capture and prohibit a considerable amount of objectionable conduct, including communications that are both useless and inflammatory. A lawyer may be found guilty of professional misconduct for particularly egregious behaviour, but more often costs awards punish conduct that crosses the line.

A client’s legal entitlements informs what a lawyer can and cannot do. As Brad Wendel framed it, a lawyer can only do for the client, what that client may lawfully do.[7] Family law provides competing entitlements and defences that are pursued in an adversarial system. The justice system itself is conflictual. Lawyers are required to pursue those lawful entitlements, and balance that framework by working within the system to negotiate and promote settlement. The Model Code requires a lawyer to encourage settlement (R 3.2-4). If the parties are divorcing, that obligation goes further under Bill C-78 (which will amend the Divorce Act in March 2021). A lawyer must encourage her client to try to resolve the dispute through negotiation, mediation or collaborative practice, if it is “appropriate” to do so (s 7.7(2)(a)).

The law encourages parents to engage with each other less conflictually, for the benefit of their child (see e.g. Bill C-78 at ss 7.2, 7.3 and 16, and BC FLA at ss 4, 37, 38 and 199(1)(2)(b)). A parenting schedule may be created in a way that is aimed at reducing conflict (see Churchill v Kennedy, 2009 NSSC 309). If a parent persists in being conflictual, a court may order a parenting schedule that will reduce conflict – even if it means reducing the child’s time with that parent (see Bancic v Mirceta, 2019 ONSC 39). A court may even decline to order costs to minimize conflict between parents (see Aubin v Aubin, 2010 BCSC 1425). So, if the matter will be decided by a third party – a judge, arbitrator, or parenting coordinator (“PC”) – a good lawyer will advise her client on how that decision-maker will view and weigh conflictual behaviour. That third party’s role is to make decisions that will also reduce the conflict between the parties, especially where there is family violence or children. So a competent family law lawyer will research the law and advise accordingly, but that still does not mean it is her role to minimize conflict.

When a dispute is resolved out-of-court, objectionable conduct can easily fly under the radar. When legal interpretations are not challenged by an adversary and decided by an objective third party, a lawyer has a heightened responsibility to get the law right. Yet, that responsibility does not apply to lawyering tactics in the same way. By tactics, I mean lawyering skills such as those employed in negotiations (e.g. escalating demands, good-guy bad-guy routines, and extreme offers). These are the tactics that the law does not always provide effective responses to – they cannot always be balanced the same way that competing interpretations of the law can be. They are primarily governed by professional judgement, but that discretion cannot be exercised pursuant to an objective of minimizing conflict.

How Might A Lawyer Minimize Conflict?

I began thinking about this question when Bill C-78 signaled a significant change to family law lawyering, and I wrote about it here. I also asked my ethics students a version of this question: whether other law societies ought to adopt a policy similar to the LSBC Guidelines. I’ve thought about the question ever since. If the objective of minimizing conflict did inform a lawyer’s role, how might she achieve it?

First and foremost, suggesting that a victim of family violence ought to be the one to try to minimize the conflict with her former abuser is futile at best, and damaging at worst. An abuser may see attempts to minimize conflict as an opportunity to employ more aggressive control tactics. Sometimes the language around this idea of minimizing conflict includes a caveat, “if appropriate” which presumably means where there is no family violence.[8] This requires a lawyer to know whether or not there is family violence. We know that not all family law lawyers screen for family violence,[9] nor are they trained in family violence, although they should obviously do both.[10] But competence concerns aside, the objective of minimizing conflict cannot be applied to survivors of family violence without risking re-victimizing them at a critical moment, a moment when they ought to be supported in their healing process and in their pursuit of legal entitlements, including protection by law.

Second, a rule could not only apply to family law lawyers. The silos of our justice system do a terrible job of talking to each other.[11] Family law parties may be engaged in multiple systems at once. For example, the same parties may also be embroiled in civil litigation. Their lawyers could not be working to different standards without risking parties leveraging the more aggressive system against the family law matter, where a lawyer’s hands would be tied.

Even if we were to adopt such a rule, how would a lawyer actually minimize conflict? Does an objective of minimizing conflict mean that a lawyer must refuse to follow instructions if she thinks following them will increase the conflict? If so, how can that be objectively determined? How might a lawyer know what her client’s former spouse might find conflictual? There are some obvious things, for example, behaviour that amounts to abuse of process or litigation abuse (which cannot be pursued anyway), but there are less obvious things too. Things that only have power over the weaker party because of the intimate history between the parties, e.g. any number of negotiation tactics, such as ultimatums, and refusing to negotiate except on terms, or tactics that have power because of a history of coercive control.

Ultimately if a lawyer were to say “I don’t think you should do X, because it will really piss off your former partner” the client is entitled to say, “I don’t care. I want you to proceed anyway.” I’m being a bit flip and cavalier, but only to make a point. If a client wants his lawyer to proceed in doing something that will increase the conflict, the lawyer must follow her client’s lawful instructions unless there is a complete loss of confidence between the two (R 3.7-2). A lawyer’s duty is to her client and the administration of justice, and that cannot be reduced based on a perception of what might increase conflict. To be clear, I do think a lot of conflictual tactical conduct is already prohibited by the law governing lawyers. But the exercise of professional judgement cannot be governed by an objective of minimizing conflict. These decisions must involve discussions between a lawyer and her client, so the client can make a fully informed decision about how to proceed. A lawyer cannot refuse to follow instructions on the grounds that she thinks it is a bad idea or conflictual – especially in an adversarial system that is conflictual by design. A lawyer is not her client’s conscience, she is his advocate, his representative.

This does not mean a lawyer cannot advise her client on the wisdom of an obviously conflictual tactic or behaviour, and even advise against such conduct. Indeed, she should be honest with her client, and even be firm, if necessary, about what she thinks (R 3.2-2[2-3]). A good lawyer may reality check with her client, to ensure he fully understands the consequences of his decisions – this may even be required in some non-adversarial dispute resolution processes, such as collaborative practice.[12] A lawyer can also provide moral advice the same way that anyone can. But what she cannot do is wrap moral advice up in a bow of legality – meaning, she cannot provide moral advice under the guise of legal advice. Moreover, she needs to be confident that her client can tell the difference between the two.[13]

Ultimately, we cannot change the fact that a lawyer is acting in a representative capacity. She provides legal advice that enables her client to make his own decisions. It is not her job to decide what is in her client’s best interests – at least not to the point of overriding his lawful instructions. The client gets to decide how he wants to live, that is a benefit of living in a democracy. We have enacted laws that reflect as much. When family law clients cannot come to an agreement on their own, they are empowered to resolve their disagreement about the right way to structure their post-separation family through the law. Judges, arbitrators and PCs will make decisions, where necessary, in a way that minimizes the conflict between them.

Where the law is not working effectively to reduce conflict, especially where the majority of the work occurs out-of-court, the solution cannot be to look to the lawyers to change their role. The law is the only objective way to reduce conflict between parties beyond therapeutic remedies. The law seems to be very slowly working towards this objective, but there is a lot more we can do, such as including more rules and presumptions in family law, and doing a better job of training lawyers on where the limits of the law are. Ultimately however, a lawyer may (and in most cases probably should) advise her client to minimize conflict, but her role is to pursue his lawful interests, even when it will not reduce the conflict between the parties.

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[1] Susan B. Boyd and Ruben Lindy, “Violence Against Women and the BC Family Law Act: Early Jurisprudence” (2016) 35 CFLQ 101 at 120.

[2] See: Joanne J. Paetsch, Lorne D. Bertrand, John-Paul E. Boyd, “An Evaluation of the Cost of Family Law Disputes: Measuring the Cost Implications of Various Dispute Resolution Methods” (2017) online (pdf): Canadian Research Institute for Law and the Family www.crilf.ca/Documents/Cost_of_Dispute_Resolution_-_Mar_2018.pdf.

[3] Final Report of the Family Justice Working Group of the Action Committee on Access to Justice in Civil and Family Matters, “Meaningful Change for Family Justice: Beyond Wise Words” (2013) at 59 online (pdf): Federation of Law Societies https://flsc.ca/wp-content/uploads/2014/10/services5.pdf.

[4] See: Stefureak v Chambers, 2004 CanLii 34521 (ON SC); D. A. Rollie Thompson, “Are There Any Rules of Evidence in Family Law?” (2003) 21 CFLQ 245 at 250.

[5] See: Bill 9, The Family Law Modernization Act, 4th Sess, 41st Leg, Manitoba, 2019 (assented to 3 June 2019) SM 2019, c 8; Manitoba’s Family Law Reform Committee, “Modernizing our Family Law System: A Report from Manitoba’s Family Law Reform Committee” (June 2018) online (pdf): Government of Manitoba www.gov.mb.ca/justice/pubs/familylawmodern.pdf; Manitoba Justice, “Family Law Modernization: Public Engagement Approach – Phases 1 and 2 Report” (April 2019) online (pdf): Government of Manitoba www.manitoba.ca/familylaw/documents/Family-Law-Modernization-Public-Engagement-Report.EN.pdf.

[6] See i.e.: Family Law Rules, O Reg 114/99 at R 1(8.2); Rules of Civil Procedure, RRO 1990, Reg 194 at Rs 2.1.01 and 2.1.02; Courts of Justice Act, RSO 1990, c C 43 at s 140; Family Law Act, SA 2003, c F-4.5 at s 91(1); Kavanagh v Kavanagh, 2016 ABQB 107 at paras 63-64.

[7] Bradley Wendel, Lawyers and Fidelity to Law (Princeton, NJ: Princeton University Press, 2010) at 59.

[8] Linda C Neilson and Susan B Boyd, “Interpreting the new Divorce Act, Rules of Statutory Interpretation & Senate Observations” (8 March 2020) at 6-7; Senate Standing Senate Committee on Legal and Constitutional Affairs, “Observations to the thirty-fourth report of the Standing Senate Committee on Legal and Constitutional Affairs (Bill C-78)” at 2-3 online (pdf): SenCanada https://sencanada.ca/content/sen/committee/421/LCJC/Reports/reportBillC-78-revised_e.pdf.

[9] See: Lorne D. Bertrand, et. al., “The Practice of Family Law in Canada: Results from a Survey of Participants at the 2016 National Family Law Program” (2016) online: Department of Justice https://www.justice.gc.ca/eng/rp-pr/jr/nflp-cndf/index.html; Dr. Katrina Milaney and Nicole Williams, “Examining Domestic Violence Screening Practices of Mediators and Lawyers” (2018) online (pdf): Calgary Domestic Violence Collective https://static1.squarespace.com/static/53a3568be4b07cf349cc12cf/t/5be330ed2b6a284b1f2f11f7/1541615855204/Examining+Domestic+Violence+Screening+Practices+of+Mediators+and+Lawyers+Final+Report+-+FINAL.pdf.

[10] See: Pamela Cross, et. al., “What You Don’t Know Can Hurt You: The importance of family violence screening tools for family law practitioners” (2018) online (pdf): Department of Justice www.justice.gc.ca/eng/rp-pr/jr/can-peut/can-peut.pdf; Deanne Sowter, “Lawyer (In)competence and Family Violence” (20 March 2019) online: Ablawg https://ablawg.ca/2019/03/20/lawyer-incompetence-and-family-violence/.

[11] See: Jennifer Koshan, Janet Mosher and Wanda Wiegers, “The Costs of Justice in Domestic Violence Cases: Mapping Canadian Law and Policy” in Trevor Farrow and Les Jacobs, eds., The Justice Crisis: The Cost and Value of Accessing Law (Vancouver, BC: UBC Press, 2020).

[12] Deanne Sowter, “Advocacy in Non-Adversarial Family Law: A Recommendation for Revision to the Model Code” (2018) 35 Windsor Y B Access Just 401 at 421-422.

[13] Wendel, supra note 7 at 138-143.

Comments

  1. This is an interesting post, but I’m not sure I can agree with it.

    The distinction is not just splitting hairs. If a lawyer researches the law and advises their client on it, they will necessarily do so to explain how minimizing conflict is both in their best interests, and in the children’s best interests (the latter being more important). A client who instructs a lawyer to take actions that run against this advise puts that lawyer in a compromising position in regards to their professional obligations.

    A lawyer who does not minimize conflict, or at least does not continuously attempt to do so, is not fully competent, or is being instructed to act contrary to their professional obligations. If that is how we define a “role,” then a lawyer’s role can only be to minimize conflict. Concluding otherwise cheapens the value of the lawyer not only to the client, but also to the justice system as a whole.

    This is the only plausible interpretation of the various duties, rules, and principles that are cited in this piece. To do otherwise would give rise to the type of sentiments I’ve heard from counsel, as follows:

    I spent 30 seconds telling the client that I have a professional duty to encourage mediation. I let them think about that for 5 days, before we started an application. I’m fully compliant with my professional duties and obligations as a result.

    Yes, this is a true story.

    Also missing from this analysis is that it is typically in the lawyer’s own personal and financial interests to maximize conflict, or at the very least their self-interests are not advanced by minimizing conflict. Because of this unique dynamic, the inherent tension between what is better for the client (and the kids) and what is better for the lawyer requires an interpretation that it is indeed the lawyer’s role to minimize the conflict.

    The unique ethical dynamics in family law related to this direct and obvious conflict of interests is one of the main reasons why contingency fees are prohibited in family law, for example. To be clear, this is different and distinct from the prohibitions of maintenance and champerty, as it’s rather simple in any family law dispute to find some “legitimate concern” or a “just cause or excuse,” but I’ll address this particular conflict briefly. While the first attempt to introduce contingency fees was under Bill 3, Solicitors Amendment Act, 1995, the concern that a lawyer will become an “interested” party, as stated in the 1995 Ontario Civil Justice Review, prevented it from making it past First Reading. During the debate of the Justice Statute Law Amendment Act, the Attorney General stated on Nov. 28, 2002,

    …it is made clear what is clear I think in the common law, namely, that contingency fee arrangements cannot be entered into for family law matters and for criminal law matters, which should be self-evident, but this must be spelled out, in my view, in legislation.

    This statement closely followed the sentinel case by the Ontario Court of Appeal in McIntyre Estate v. Ontario (Attorney General) discussing contingency fees, but clearly stating that “different factors apply” to family law matters.

    These different factors are not just limited to pecuniary interests, but also to the very practical functioning of the family law litigation system itself. If it’s not the lawyer’s role to minimize conflict, whose role would it be? The clients, who are usually emotionally distraught and almost always have limited knowledge of the law? Or the court system, who has repeatedly said that they are not the preferred venue for these disputes, and invariably cannot produce the best results.

    Removing the lawyer’s role in this way ensures that the parties will fail, in that expeditious and cost-effective resolution will remain impossible. This would leave all of the principles of professional conduct and duties and rules found in legislation and case law to be completely empty and devoid of meaning. This doesn’t mean that it is the only role of a family lawyer, but it must certainly be part of their role.

    I have also noted the special role of a lawyer in family proceedings, distinct from other litigation contexts, where the risk of emotional harm to the children from parental separation is very real, if not present in some manner in all family disputes.

    A conclusion that a lawyer has no role to minimize conflict in family proceedings is one that says that a lawyer has no professional interest in how the process of family litigation and the manner in which it proceeds may impact the most vulnerable members of our society – the children. It’s a conclusion I find particularly troubling, and simply cannot concede to.

  2. Hey Omar!

    I appreciate your comments. I agree with some of what you’ve said here, though not all. I think the central piece that you’re overlooking is that a lawyer cannot make decisions based on a reference point other than the law and her client’s interests. In other words, she cannot approach her representation of her client’s interests through a lens of what she subjectively views will minimize conflict for her client, or put another way, what she thinks is morally right. The client gets to make those decisions. Like I emphasized, this does not mean she should not advise her client to minimize conflict. In that sense, to be competent to practice family law, especially when children are involved, she must advise her client on how a decision-maker will weigh BIC, which means the client ought to be advised to minimize conflict. She should emphasize non-adversarial processes where possible. But I think you are conflating bad lawyering with what the lawyer’s role is as an advocate. Your example above, and the idea of a lawyer who makes decisions based on how much money she’ll make are both examples of bad lawyering. That’s not my focus here. I also want to be clear that maximizing conflict is not the lawyer’s role either (i.e. being hyper-zealous to earn more money). My point is that a lawyer’s role is to pursue her client’s interests within the law, and adjusting her representation based on what might be viewed as conflictual is not part of that analysis. (Eg. family violence – consider a claim for exclusive possession.) In some contexts, conflict is actually necessary.

  3. Following on Omar Ha-Redeye’s comment on Deanne Sowter’s Column: “A Family Lawyer’s Role Is (Not) to Minimize Conflict”, I too felt compelled to comment.

    I am a Family Lawyer and believer that Family Law is special – with an ethical obligation to Do No Harm. I am all for zealous advocacy where appropriate, but we should not allow ourselves to knowingly collude with our clients in harming children. I am not a ‘hired gun’. And I will not act without doing my own ethical screen. I disagree with Deanne Sowter when she states ”a lawyer cannot refuse to follow instructions on the grounds that she thinks it is a bad idea or conflictual….”. I can and I do refuse to act if, based on my understanding of the facts, what is being sought is outside the range of reasonable options, defensible in the law of best interests and informed by brain science and what we know about the impact of parental conflict on children.

    Am I conflating moral advice with legal advice? Maybe. Is this fraught with subjective personal politics and values? Probably. But in 2020 we have brain science and the knowledge that what we do and how we do it can exacerbate harm. We have power in the legal process and this gives rise to responsibility.

    It’s no secret — as Deanne Sowter points out, negative lawyering in Family disputes prolongs and intensifies conflicts between separating parents. Courts in Alberta and across North America have long recognized that high-conflict parenting disputes are damaging to children (and their parents) and the last thing we need are lawyers as “flame throwing propagandists”.

    The evolution of our thinking about parenting disputes and the children at the centre of these disputes has pushed us to look to new ways of approaching Family Justice and to the special role of the Family Lawyer. The mainstreaming of ADR, the Court-led interdisciplinary initiative on Reforming the Family Justice System in Alberta, and the hopefully not completely dead promise of a unified Family Court in Alberta, are some examples.

    Over the last decade we have seen the development of more child-focused approaches to Family Justice, a new lexicon for “parenting”, more Family Lawyers trained in Collaborative Law, new models of child-inclusive mediation and Parenting Coordination, the development of the ‘Child Consultant” role to facilitate child-inclusive processes, Parenting Coordination to keep parenting disputes out of Court and support better post-separation co-parenting skills.

    The research showing separation conflict to be harmful to children lends support to Collaborative and other non-adversarial approaches being the better way. However, we also know that we need a system of Family Justice including Court-based processes which defuse or contain family conflict to better protect and advance the interests of children, and lawyers as zealous advocates for those facing a myriad of injustices.

    The challenge for Family Lawyers is managing the tension created by the ethical obligation to not exacerbate harm-causing conflict and where / when necessary zealously advocating for righteous Family litigants.

    The question whether Family Lawyers acting for parents should have an ethical obligation to Do No Harm to children should not be controversial. We can look to the UN Convention on the Rights of the Child, to the codification of “Best Interests” in the Alberta Family Law Act and the newly amended Divorce Act, and even to the discretionary principles in our Codes of Conduct.

    There are proposals out there for shared principles incorporating an ethical obligation to Do No Harm in parenting disputes, actual Guidelines or Standards of Practice, and even calls for new or improved “Codes of Conduct for Family Law”. Notably there are strong voices in the legal profession advocating for something more than just individual discretion guiding the lawyering of Family disputes. Deanne Sowter wrote on this very topic in “Advocacy in Non-Adversarial Family Law: A Recommendation for Revision to the Model Code”, (2018) 35, Windsor Yearbook of Access to Justice at 401, as have Nick Bala, Rachel Birnbaum and Patricia Hebert in “Ethical Duties of Lawyers for Parents Regarding Children of Clients” (2017) Vol. 95: No 3, Can Bar Review.

    John Paul Boyd’s April 20, 2016 Slaw Blog “The Need for a Code of Conduct for Family Law Disputes” resonates:
    “…It occurs to me that this vision of advocacy – the lawyer as champion, resolutely engaged in battle within the confines of an obscure chivalric code – is perhaps incompatible with the broader duties owed by counsel in the context of family law disputes. With the greatest of respect to my licensing bodies, the Codes of Conduct ill serve both our clients and their children”.

    “…Although some lawyers take a purely instructions-based approach to family law disputes, in my view the perspectives of counsel in such disputes must be broader. Without a doubt we owe a duty of fealty to our clients, but that duty must be mediated by:
    1. Our knowledge of the range of probable outcomes, contrasted with clients’ wish lists;
    2. The need to minimize conflict, for the benefit of both our clients and, more importantly, their children;
    3. The need to give both parties the greatest chance, where appropriate, of effectively co-parenting their children into the indefinite future; and
    4. The paramountcy of the children’s best interests.”

    On February 8, 2019, JP Boyd revisited his 2016 SLAW Blog post with “The Need for a Code of Conduct for Family Law Disputes – Part 2”. He commented that the Model Code of Professional Conduct released by the Federation of Law Societies of Canada in 2017 mentions children only twice, and the direction to consider the best interests of children remains optional rather than mandatory: “Not only does the Code of Conduct fail to serve the best interest of Canadian families, including their children, it has ceased to reflect how competent counsel actually practice family law”.

    While the debate on mandatory Guidelines or an enhanced Code of Conduct for Family disputes continues, Family lawyers are increasingly lawyering through an ethical lens, with child-focused and child-inclusive practices. A common thread is the Family Lawyer’s essential role in proactively guiding parent-clients to put their children at the forefront and in so doing – minimize conflict.

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