Not every survivor of family violence walks into her lawyer’s office with a broken arm or black eye. Even when there is physical abuse, few clients readily open up about this with their lawyer. Identifying the subtler forms of abuse is even more challenging. Coercive controlling behaviours, including emotional and psychological abuse and financial control, often build slowly over time in the relationship and don’t leave visible injuries. As a result, the victim may be unaware of the extent of the abuser’s control over her or, indeed, that his treatment of her is a form of abuse.
Despite the reluctance of many survivors to share information about abuse with their lawyer, its presence is important in a number of ways in a family law case. A lawyer who is not aware of it faces significant challenges in representing their client effectively.
Why knowing about abuse is relevant to family law cases
First, there may be immediate safety concerns for the client. Violence continues and may escalate at the time of separation. Ontario’s Domestic Violence Death Review Committee has noted repeatedly that from the time an abuser becomes aware of or begins to believe that his partner is planning to leave him and continuing for at least several months after separation is when women are at the highest risk of being killed by that partner.
For these reasons alone, it is imperative for family law lawyers to know about any history of abuse, but particularly coercive controlling behaviours, as early in the solicitor-client relationship as possible.
Second, the presence of family violence will shape the legal remedies needed by the client. Perhaps co-parenting is not a safe option for either the parent or the children. A restraining order or an order for exclusive possession of the matrimonial home may be necessary.
Third, while mediation can work in cases involving family violence, the lawyer should be aware of any past or present abuse before raising this possibility with a client.
Fourth, abuse has long-lasting impacts on its victims. Many women who leave abusive relationships are highly traumatized, which affects their ability to engage effectively with their family law case. Lawyers need to be able to adapt their style of practice to use a trauma-informed approach in order to be able to best support these clients.
Why family violence screening is necessary
Why don’t survivors of abuse tell their lawyers, when it seems so obvious that this would help their case? There are many reasons. Lawyers can seem intimidating to their clients, especially at the start of the relationship before any trust has built up. Sharing information about something as intimate as family violence is very difficult. Clients may be embarrassed, feel a sense of shame or blame themselves for their partner’s behaviour. They may worry that the lawyer won’t believe them or will judge them. Fear is a big factor: fear of retribution by the abuser, fear that the lawyer will call the police or child protection authority, fear that they will lose what control they have over their lives.
Screening for family violence would assist lawyers to collect information about any abuse, but a survey of family law lawyers and judges conducted by the Department of Justice in 2016 found that only two-thirds of respondents indicated that they often screen their clients for family violence. Of those who screen, 80 percent rarely or never use a standard tool.
How family violence screening can be conducted
In 2017, the Department of Justice contracted with Luke’s Place to undertake research into family violence screening tools for family law practitioners. Working with our academic partners and a national working group of professionals that included lawyers, health care practitioners, mediators and violence against women workers, we assembled and analyzed 84 screening tools used in a number of fields primarily in Canada and the United States.
We also conducted a review of both academic and non-academic literature in this area and interviewed lawyers to find out what they knew and thought about the use of screening tools to identify family violence.
Our research found that, when properly used, screening tools increase the rate of accurate disclosures of family violence. In other words, when survivors of family violence are asked, they answer, and answer truthfully.
Screening is especially helpful in cases involving coercive controlling behaviours – the emotional and psychological abuse that can be so difficult to spot – because the questions ask about behaviours without placing a label on them. This makes it easier for a client to provide truthful, relevant and helpful information about the history of her relationship.
We concluded, based on our research, that universal screening for family violence by family law lawyers should be mandatory to ensure that lawyers would have the information they need to properly represent their clients.
More work needs to be done before this is realistic. Standardized tools, including culturally appropriate tools, need to be developed and tested. Lawyers will need to be trained in how to use them. Legal aid programs will need to find a way to compensate lawyers for the time needed to conduct a screening.
This is work well worth undertaking. With a validated tool and the training to use it properly, family law lawyers will be better able to identify the presence of family violence in clients. They will then be positioned to provide the clients who need it with a trauma-informed approach to their practice and appropriate legal advice with respect to both outcomes and processes. Survivors of family violence will be better supported through their family law process and will emerge with outcomes that keep them and their children safe.
This article was originally published by The Lawyer’s Daily, part of LexisNexis Canada Inc.