If It Wasn’t Required Before, It Is Now: All Family Lawyers Must Screen for Family Violence

Knowing which dispute resolution process to recommend to a client requires a lawyer to know whether there is family violence or a significant power imbalance. The only way to competently provide that legal advice is to have the relevant information by screening for family violence. The recent amendments to the Divorce Act, RSC 1985, c 3 (2^nd Supp) and the Supreme Court of Canada decision, Colucci v Colucci, 2021 SCC 24 suggest that lawyers are required to screen for family violence to be able to competently comply with their statutory obligations. This new legal context also indicates that lawyers must not only identify and assess family violence, but manage it too, leading to renewed concerns for collective effort in training and designing safe dispute resolution processes.

Lawyers are Required to Screen for Family Violence

The amended Divorce Act requires a lawyer to “encourage” their client to “attempt to resolve” the issue through a “family dispute resolution process, unless the circumstances of the case are of such a nature that it would clearly not be appropriate to do so” (s 7.7(2)(a)). The Act also requires spouses to “try” to resolve their dispute through a “family dispute resolution process” if “it is appropriate to do so” (s.7.3). The Act does not specify that a family dispute resolution process would be inappropriate where there is family violence, despite arguments for an explicit exemption. (See: NAWL and Luke’s Place Joint Brief on Bill C-78 Submitted to the Justice and Human Rights Committee at Recommendation #14.) However, the legislative background to the amendments explain, “to the extent that it is inappropriate to do so”, includes family violence. The legislative background provides:

Although dispute resolution processes such as mediation may be preferable in some cases, they may not always be appropriate, as may be the case if there has been family violence or a significant power imbalance. As a result, the requirement to engage in dispute resolution processes is not absolute, and will be required only “to the extent that it is appropriate to do so.”

In the context of discussing the Divorce Act amendments and section 7.3, the Supreme Court of Canada held that “Parents should be encouraged – absent family violence or significant power imbalances – to resolve their disputes themselves outside the court structure …”.[1] The language “absent family violence or significant power imbalances” is not found in sections 7.3 and 7.7. However, the Court made it clear that where there is family violence or significant power imbalances, there is no requirement to try to reach a consensual resolution.

With the support of the FREDA Centre for Research on Violence Against Women and Children, the Honourable Donna Martinson and Dr. Margaret Jackson recently released “The 2021 Divorce Act: Using Statutory Interpretation Principles to Support Substantive Equality for Women and Children in Family Violence Cases”. They also suggest that the Court’s statement in Colucci “applies directly to the duty of legal advisors to encourage dispute resolution in s. 7.7(2)” (at 5). Importantly, they observe that “complying with this duty requires an assessment by the legal advisor to determine whether family violence is an issue and if there are any significant power imbalances” (at 5). In other words, a lawyer cannot comply with their statutory obligation unless they have assessed for family violence.

British Columbia provincial legislation has required that family lawyers assess whether there is family violence since at least 2013. The Family Law Act, SBC 2011, c 25, provides that “family dispute resolution professionals” including lawyers, “must assess, in accordance with the regulations, whether family violence may be present” and the “extent to which the family violence may adversely affect (a) the safety of the party or a family member of that party, and (b) the ability of the party to negotiate a fair agreement” (s.8(1)). Unfortunately, regulations under the Family Law Act still do not exist for lawyers – just mediators, arbitrators, and parenting coordinators.

In a previous ABlawg post, I suggested that the competency rule under the Federation of Law Societies of Canada Model Code of Professional Conduct encompasses screening for family violence (R 3.1). As I said then, the rule requires that lawyers investigate the facts, identify the issues, ascertain the client’s objectives, consider possible options and advise the client. The challenge until now, was that family violence was viewed narrowly, if at all, and it was not always legally relevant. Until recently, the Divorce Act did not even mention domestic or family violence, but now it does. Now family violence is legally relevant to the determination of a child’s best interests (s.16), and it is relevant to what dispute resolution process a lawyer advises their client to try (s.7.7). If there was any doubt before that lawyers must screen for family violence to competently practice family law, there can no longer be a doubt given the Divorce Act amendments and Colucci. Whether the Model Code directly enumerates screening for family violence, or not, in my view, lawyers must screen for family violence.[2] It is the only way to comply with the Divorce Act and it is both incompetent and unconscionable not to.

What are Lawyers Screening For?

Once we establish that lawyers must screen for family violence, the questions become, what is a lawyer screening for, and what do they do with that information once they have it?

Screening for family violence has three primary purposes: to identify, assess, and manage risk. Screening should occur at the commencement of the file, and throughout it as the client’s circumstances change. Identifying means identifying clients who are at risk of family violence – survivors and abusers.[3] Assessing family violence establishes the type and severity of the abuse, and other relevant factors that can help inform how to manage the abuse (e.g.: relationship history, systemic / institutional factors, and the perpetrator’s background). Managing the risk involves evaluating the information to determine safety concerns, legal relevance and advice. The client’s physical and emotional safety need to be considered, but also what process will allow both parties to negotiate an agreement, if a consensual resolution is the goal. The wrong process could revictimize a survivor, increase risk for a child, lead to an outcome that is achieved under duress, or worse. Risk is also relevant for the safety of the professionals involved.

According to Hillary Linton, screening is a “pre-process process” (at 9). She says it’s not just about screening people into or out of a process. It’s about having the information to ensure “quality process design”, meaning designing “the most appropriate, safest, most satisfying, most durable, most likely to be effective and most respectful dispute resolution process for each individual and each family” (at 9).

The obvious problem is that lawyers only have one side of the story. Screening is far more common for mediators and arbitrators, who have both sides of the story, and who in some cases are professionally or legislatively required to screen. Lawyers, by virtue of being partisan advocates have one half of the story, and they are often preconditioned to distrust information that flows from the other side. Lawyers see that information through a lens that translates it into legal relevance. When family violence is an issue, the very first question should be safety, but our justice system is simply not designed with that question in mind. Is this a family experiencing family violence? If so, what process will provide the protections necessary for both parties to pursue their legal rights and entitlements? The answers will not be the same for every family, and in the current system, these questions are rarely asked or discussed between counsel at the commencement of or throughout the file.

It is no wonder that research consistently shows family lawyers do not screen. For example, research conducted in 2018 by the Calgary Domestic Violence Collective found that most family lawyers do not screen for family violence, for reasons including the fact that screening is “not mandated by legislation”.[4] One interviewee explained that lawyers don’t ask because family violence does “not impact the legal proceedings / property settlement. The court does not use that information to make a decision”[5]. They also said they do not screen because they feel that family violence is too “messy” and “responding is complex”[6] The report revealed that lawyers don’t ask because they don’t know what to do with the information they receive.

The Calgary study was conducted prior to the Divorce Act amendments, but earlier this year the Rise Women’s Legal Centre in BC released their report, Why Can’t Everyone Just Get Along? How BC’s Family Law System Puts Survivors in Danger (“Rise Report”). Despite the requirement to assess for family violence in BC (and the fact that under sections 37-38 of the BC Family Law Act, family violence is relevant to the best interests of a child), the Rise Report shows that some family lawyers refuse to discuss family violence with their client, even when it’s the client who brings it up and wants to discuss it (at 51). The same report found that 44% of survivors are told by their lawyer not to bring up family violence in court, for reasons including: family violence is not “relevant”, “judges don’t like it”, “it could be used against” the survivor, “it’s easier not to”, and that judges rely on stereotypes and misperceptions to improperly view and weigh family violence (at 52). This finding is echoed by the Barbra Schlifer Commemorative Clinic in Ontario, which recently conducted a study on risk assessment (“Schlifer Study”). In the process of developing a screening tool, they interviewed survivors, the majority of whom “indicated that their safety concerns were not considered during family court proceedings” (at 9).

Imagine the courage it takes for a survivor to seek counsel and try to leave an abusive relationship, only to have that lawyer fail to listen to their story, citing the failures of the family justice system as the reason.

The Schlifer Study also found that 90% of family court stakeholders do not have “formal training on risk assessment tools and domestic violence risk factors”, instead, they use their “experience and professional judgement” (at 9). Stakeholders who were interviewed included “duty counsel supervisors, duty counsel, advice lawyers, mediators, information referral coordinators, and family court support workers” (at 49). Like most research in this area, the study emphasized the importance of education (see: here, here, and here).

There is also no universal screening assessment tool, and disagreement amongst professionals about which tool is most appropriate for lawyers. The Department of Justice and a group of family violence experts are in the process of designing a family violence screening toolkit for family lawyers, but unfortunately it has not been released yet. (There are rumours that it will be released in November.) The new Schlifer risk identification and assessment tool and user’s guide, are both available online. But as observed in the Rise Report, there are not many options for lawyers who want training. Why aren’t law societies and law schools regularly offering training in family violence?

What to do with the Information?

Another challenge for lawyers is safely and effectively managing family violence. Lawyers are tasked with managing family violence in a justice system that was not built with family violence in mind,[7] and which has incorporated systems and hierarchies that are ill-equipped to respond effectively to safety concerns and damaging myths and stereotypes, particularly about gender-based violence.[8]

Under the BC Family Law Act, the Lieutenant Governor in Council may make regulations “respecting actions to be taken after an assessment, and putting limits and conditions on the taking of those actions” (s.245(1)(e)(v)). An abusive spouse could be limited in terms of next steps, which is a potentially powerful response to family violence; but those safeguards do not exist yet.

There are three primary things that a lawyer can seek to do with the information they receive. They can try to create a safe process, a safe outcome, and they can try to stop the cycle of abuse. Family violence is a product of systemic inadequacies, gendered hierarchies, and societal norms. A lawyer is a pebble in that tidal wave, but they could make an enormous difference to a single client if they chose to do so.

Lawyers can try to create a safe process. There are strong views amongst practitioners about whether commencing litigation is a safe step for survivors of family violence. The question is whether an adversarial first step will inflame the abuser and create imminent risk for the survivor. Research shows the period immediately following separation poses the highest risk to the survivor. Nearly half of all spousal homicides occur within two months after separation. For example, Dr. Elana Fric-Shamji was murdered by her husband within days of him being served with separation documents.

Both ADR and litigation can be problematic for family violence. The question is how to determine which process to recommend, and how to create a safe process once the client has made an informed choice. I know these discussions happen amongst professionals; they need to start taking place within the broader family law bar too. The profession needs more continuing legal education (“CLE”) programs to include discussions about how to create a safe and responsive process (and therefore more research to help inform CLEs).

Lawyers can try to create a safe and durable outcome. Family violence is always relevant in family law. Understanding the presence and complexities of family violence and power imbalances will influence whether an agreement is unconscionable or being signed under duress.[9] Additionally, if a lawyer knows there is family violence, they can take it into account when advising a client on the terms of a settlement or consent order. For example, periodic payments provide an opportunity for ongoing control by an abusive spouse, such that a lump sum might be more appropriate.[10]

Lawyers should not become part of the cycle of abuse. I’ve written before about the challenges of trying to warn a survivor that risk is heightened (see: here and here). One of the other concerns for an abuser’s lawyer is whether their own conduct is continuing a pattern of abuse. Both litigation and ADR can be manipulated as another type of abuse. According to the Rise Report, “litigation harassment is often used within the family court structure by the abusive party to continue exercising power after a relationship has ended” (at 30). It can be hard to identify because it “relies on legitimate legal processes and remedies that can appear normal to the court, particularly at the start of proceedings” (at 30). Litigation abuse is well documented (see: here, here, here and here), and is not limited to litigation. Lawyers have some tools and professional safeguards to create the necessary boundaries and infrastructure themselves – if they know that’s what they need to do. For example, a lawyer cannot abuse the justice system by bringing proceedings motivated by “malice” (R 5.1-2(a)), nor can they assist a client in doing something “dishonest or dishonourable” (R 5.1-2(b)). A lawyer can also withdraw citing a “serious loss of confidence between the lawyer and client” (R 3.7-2). In other words, a lawyer has the professional tools not to act as the abuser’s over-zealous advocate. But family violence is nefarious, and it can be perpetuated under the guise of legitimate legal interests. It falls to the lawyer to see that, to identify the legitimate from the illegitimate but not unlawful. A lawyer can only do that if they have the information.

Despite the obligation to screen, and perhaps because of the challenge of managing family violence, clinging to the lawyer’s role as distinguishable from that of a social worker will likely ground counterarguments – just as the sentiment that family violence is too messy and complex for lawyers and the family justice system serves to compartmentalize a narrow legal response. There are two lingering questions bubbling under the surface of this line of reasoning:

• Would a law society disciplinary tribunal consider the lack of screening practices by a lawyer in the context of professional misconduct allegations?
• If screening were common practice, would a lawyer’s lack of screening factor into negligence actions? Evaluating potentially negligent conduct requires determining what service would be provided by a reasonably competent lawyer in the same circumstances.[11] Could a client who agreed to lop-sided terms of settlement because of duress, not only seek to have the agreement set aside, but also seek damages from their lawyer citing lack of screening and education in family violence?

I suspect the answer to both questions is “yes”, but I fear to imagine the catastrophic nature of the facts that would need to occur for such a case to come before a law society tribunal or a court. Instead, I look to the law societies, bar associations, and legal professionals to get trained and provide training, screen for family violence, and put their minds to creating dispute resolution processes that expose family violence rather than mask it.

______________________________

[1] Colucci v Colucci, 2021 SCC 24 at para 69.

[2] I would prefer that the Federation make a screening requirement explicit in the Model Code. See also: Luke’s Place, Department of Justice Canada, “What You Don’t Know Can Hurt You: The importance of family violence screening tools for family law practitioners” (February 2018) at 67 online (pdf): www.justice.gc.ca/eng/rp-pr/jr/can-peut/can-peut.pdf.

[3] I have used the terms “survivor” and “abuser”. I recognize that some people may refer to themselves as victims or do not label their experience. I recently heard the phrase “person experiencing abuse” and “person using abuse” which was recommended except when the individual prefers something else.

[4] Dr. Katrina Milaney and Nicole Williams, “Calgary Domestic Violence Collective, “Examining Domestic Violence Screening Practices of Mediators and Lawyers” (July 2018) at 16.

[5] Ibid at 16.

[6] Ibid at 16-17.

[7] See also: 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).

[8] See e.g.: Elizabeth Sheehy and Susan Boyd, “Penalizing Women’s Fear: Intimate Partner Violence and Parental Alienation in Canadian Child Custody Cases” (2020) 42:1 J Soc Welfare & Fam L 80.

[9] See: Family Law Act, RSO 1990, c F 3, s.56(4); Miglin v Miglin, 2003 SCC 24.

[10] See: Davis v Crawford, 2011 ONCA 294 at para 67.

[11] See: Central Trust Co. v Rafuse, [1986] 2 SCR 147 (SCC).