A Family Lawyer’s Duty to Discuss Reconciliation With Clients: Time for Change?

Should lawyers be marriage counsellors? The Divorce Act seems to think so. For reasons discussed below, I’m less sure.

The Divorce Act—the federal legislation that governs divorce in Canada— has been the subject of increased attention because of significant amendments made in 2021. On Slaw, for example, Deanne Sowter published two thoughtful columns addressing what these amendments mean for family law lawyers (see here and here). Not having practiced or taught family law, I wasn’t familiar with the details of the legislation, but was interested in the impacts of the 2021 amendments on lawyers. Before I could consider the 2021 amendments, however, I stumbled upon a surprising older provision of the Divorce Act, that stipulates a lawyer has a duty to discuss the “possibility of reconciliation” with their client (s. 7.7(1)).

“Reconciliation” is not defined in the legislation. Presumably, given the context, it means the lawyer is required to explore with a client, who has expressed a desire to divorce, the possibility of not getting a divorce or, at the very least, the possibility of improving their relationship with their former partner so as to be more “reconciled”.

This section of the Divorce Act also requires a lawyer to inform their client of any “marriage counselling or guidance facilities” that the lawyer knows of that might help their client “achieve a reconciliation” with their spouse. This duty applies to every lawyer who represents a client in a divorce proceeding, “unless the circumstances of the case are of such a nature that it would clearly not be appropriate to do so.” Moreover, a lawyer is required to certify to the court that they have complied with these requirements in relation to reconciliation (s. 7.7(3)).

These provisions regarding lawyers’ duties in relation to spousal reconciliation have been part of the legislative regime since 1968, when a series of reforms were introduced on the advent of “no-fault divorce” (more on this later). Since 1968, there have been a series of amendments to the Divorce Act, but none have altered the fundamentals of the statutory duty of a lawyer in a divorce matter to discuss reconciliation with their client. However, there seem to me to be a few good reasons to now rethink the inclusion of this duty.

First, the paternalism inherent in the duty is in tension with the lawyering role. A lawyer’s job is to enable people to advance or defend their legal entitlements. Lawyers do this by, for example, providing legal expertise, deploying relevant legal skills and using their professional status to access parts of the legal system (lawyers have, for example, special rights to appear in court and abilities to execute certain documents). This role is embedded in law through a lawyer’s duty of commitment to a client’s cause. Given this context, there is something strange about statutorily mandating a lawyer to talk to a client, who has come to them wanting to exercise their legal rights in relation to divorce, about why the client shouldn’t exercise these rights.

To be sure, there is debate in legal ethics scholarship about whether and if so, how, a lawyer should engage in “moral counselling” with their clients. Should lawyers simply help clients understand and pursue their legal entitlements? Or should lawyers also raise with clients how their actions—legal entitlements aside—might affect others? Is there a stronger obligation to steer the client towards the most morally sound result in the circumstances, even if that result is not consistent with the client’s initial instructions or equivalent to what they are legally entitled to? Or does such steering inappropriately place the lawyer in a position of dominance, as having moral authority over the client and result in treating the client “more like a child than an adult”?[1]

Professional conduct codes essentially answer these questions by providing that advising clients on non-legal matters is permitted, but not mandated. The most relevant content appears in commentary to the competence rule which indicates

In addition to opinions on legal questions, the lawyer may be asked for or may be expected to give advice on non-legal matters such as the business, economic, policy, or social complications involved in the question or the course the client should choose. In many instances the lawyer’s experience will be such that the lawyer’s views on non-legal matters will be of real benefit to the client. The lawyer who expresses views on such matters should, if necessary and to the extent necessary, point out any lack of experience or other qualification in the particular field and should clearly distinguish legal advice from other advice. (Federation of Law Societies of Canada, Model Code of Professional Conduct, r. 3.1-2, Commentary [10]).

In view of the above, the Divorce Act provisions on lawyers and reconciliation are out-of-step with how the law governing lawyers approaches counselling clients on non-legal matters (i.e. it can be done, but is not required).

Moreover, the type of “moral” or non-legal counselling at issue in the Divorce Act deserves some scrutiny. A cursory look at the legislative history and debates on the introduction of “no-fault” divorce in 1968 reveals significant anxiety about the impact of providing greater access to divorce. For example, a 1967 report of a Special Joint Committee of the Senate and House of Commons on Divorce that was tasked with studying divorce in Canada and making recommendations for reform took as its starting position that

…Marriage is the foundation of the family and of social organization….[M]arriage should be essentially monogamous and for life and any divorce law should have as its primary objective the reinforcement of the stability of marriage and not its destruction.

The 1967 Joint Committee report also noted that that many witnesses before the Committee (including representatives of multiple religious organizations) “stressed the desirability of an established reconciliation procedure to save as many marriages as possible.”

Much of the 1968 Divorce Act can be understood, as characterized by one commentator at the time, as “designed to combine traditional thinking with some of the new ideas about divorce in a manner acceptable to all shadings of public opinion.”[2] More particularly, the imposition of a duty on lawyers to discuss reconciliation with their client was seen as part of the necessary “preventive machinery” built into the Act to counteract the impact of broadened grounds for divorce.[3]

Imposing a duty on lawyers to counsel clients on reconciliation appears to be a compromise position. The 1967 Joint Committee report notes that “some witnesses have urged that reconciliation attempts should be mandatory before divorce petitions are permitted to proceed. This has been suggested by the United Church of Canada, together with such organizations as the Catholic Women’s League of Canada.” The Committee also noted, however, that there were limited numbers of qualified marriage counsellors in Canada at the time such that compulsory marriage counselling was not a “practical proposition.” The solution to this dilemma seems to have been to off-load some of this work onto lawyers – in other words, lawyers were “plunged into a certain amount of marital counselling.”[4] As one contemporaneous commentator observed “in light of the strong pressures from many organizations that the government should impose mandatory counselling, the counselling provisions of the Act mark a sound compromise between bitter realism and misguided idealism.”[5]

One might reasonably question whether our society’s views on marriage have changed such that enlisting lawyers in a preservation of marriage agenda is outdated. Certainly, the institution of marriage has evolved in Canada in a myriad of ways in the last 50 years. For example, its religious underpinnings have waned, and it has grown to be a more equitable and inclusive institution, albeit imperfectly so. It is also worthwhile to pause to consider what interests the state was seeking to protect when this duty was first imposed upon lawyers. Abstractly, “preservation of marriage” might sound like a benign good but, historically, marriage has been a vehicle for exercising economic control over women, reinforcing stereotypical gender roles and related power dynamics and shielding the private “home” from state scrutiny, often at the expense of the safety and wellbeing of women and children.

Additionally, there remains a more fundamental question of means: is it appropriate for the state to be co-opting the lawyer-client relationship to advance the goal of dissuading divorce? In Canada (Attorney General) v. Federation of Law Societies of Canada, the Supreme Court of Canada warned against turning lawyers “into state agents” for ends that are extraneous to the lawyer’s representation of the client. A government requirement that lawyers attempt to be “marriage-menders”[6] (to use a characterization of one commentator at the time) is something different than acknowledging that it might, in some circumstances, be helpful for a lawyer to talk to their client about whether a divorce is in their client’s best interest. Relatedly, should family law clients be forced to pay lawyer fees for a mandated discussion about whether their relationship can be saved (assuming, of course, that the lawyer charges for this time)?

In fairness, the Divorce Act provisions do have an “escape clause” when it comes to this duty: lawyers do not have to discuss reconciliation with their client “if the circumstances of the case are of such a nature that it would clearly not be appropriate to do so.” This is an important caveat that would, for example, presumably relieve a lawyer from having to talk about reconciliation with a vulnerable client who has experienced family violence (see, here, for more discussion).

But, while this escape clause seeks to provide the lawyer with more flexibility, it also leads into a second type of concern: the highly questionable efficacy of the provisions. Even if one takes the position that imposing a duty on lawyers to discuss reconciliation with their clients is appropriate (which I don’t concede), does such a duty actually do anything?

At the time the provisions were introduced in 1968, commentators noted the vague nature of the escape clause in place at the time, which had similar wording to the current provision. For example, as observed in a 1969 law review article:

Nothing in the Act even hints at what kinds of “circumstances” would justify non-compliance. Would there be certain conduct which is so reprehensible that no reconciliation could ever be possible, and if so, what types of conduct are included? Is the exception limited to the case where the respondent cannot be located? Would it include the situation where the potential petitioner is firmly opposed to any attempts at reconciliation? It would seem that the best approach, at least for the time being, would be to follow the commands of section 7(1) in every case where possible.[7]

Now, more than 50 years later, we still seem to lack any clarity as to all the specific types of circumstances under which this exception would apply. Does such vagueness lead to potential over-compliance with the duty, as suggested above? Or perhaps conversely, does it provide an easy “out” for lawyers who believe, as a general matter, that this is not a productive exercise. In either case, the intention of the provision is undermined.

What about lawyers who do comply with the duty? Does this result in meaningful conversations with their clients? Does the duty achieve what sets out to do on its own terms: are a significant number of divorces prevented? At the time of the 1968 Divorce Act reforms, it was seen as a risk that this would simply turn into a box-ticking exercise for lawyers. As observed in the 1967 Joint Committee report, “the unconscientious lawyer could easily turn [a duty to discuss reconciliation] into a mere formality.”

Moreover, might there also be some risks associated with directing lawyers to engage in relationship counselling with their clients? Presumably, many, if not most, lawyers do not have significant expertise in this area. The 1967 Joint Committee report acknowledged “marriage counselling is not a task just any person can do; it requires considerable training and skill.” The Commentary to the competence rule, cited above, also recognizes that caution is warranted when lawyers provide views on non-legal matters, noting that the lawyer should “if necessary and to the extent necessary, point out any lack of experience or other qualification in the particular field and should clearly distinguish legal advice from other advice.”

In short, there seem to be real questions regarding both the propriety and effectiveness of statutorily mandating a lawyer to discuss the possibility of reconciliation with a client. Do we need this duty in family law? Does it serve any real purpose? Or is it simply time to get rid of it? At the time that this duty was introduced, it was acknowledged that “a better counselling arrangement could have been made…[but it is] probably better to impose some duties upon the legal profession now, than to wait until some more utopian scheme of counselling.”[8] Now, more than 50 years later, do we want to make the same call?

In writing this column, I’m cognizant of the fact that I do not have any deep “on the ground” knowledge of how this duty works in practice. I’m not a family law practitioner or scholar and I’ve only talked to a few about how this duty works (or doesn’t work). In light of this, I especially welcome feedback (in the comments section or otherwise) from those who practice family law or who are family law clients. What do you think? Is it time for change?

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[1] Richard Wasserstrom, “Lawyers as Professionals: Some Moral Issues” (1975) 5:1 Human Rights 1-24 at 19.

[2] Brigette M. Bodenheimer, “The New Canadian Divorce Law” (1968) 2(3) Family Law Quarterly 213 at 222.

[3] Bernard Green, “The Divorce Act of 1968”, (1969) 19 University of Toronto Law Journal 627 at 639-640.

[4] T. J. Wuester, “Some Comments on the Divorce Act 1968” (1969) 34 Saskatchewan Law Review 15 at 27.

[5] Bernard Green, “The Divorce Act of 1968”, (1969) 19 University of Toronto Law Journal 627 at 640.

[6] T. J. Wuester, “Some Comments on the Divorce Act 1968” (1969) 34 Saskatchewan Law Review 15 at 25.

[7] Ibid. at 27.

[8] Ibid. at 29.