By: Deanne Sowter
PDF Version: Lawyer (In)competence and Family Violence
Legislation Commented On: Bill C-78, An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act
Family Lawyers Are Not Required To Be Trained In Nor Screen For Family Violence
In Canada, family law lawyers are not professionally required to screen for family violence. The Federation of Law Societies of Canada (FLS) and provincial / territorial law societies make no reference to screening or family violence in their codes of conduct.
The British Columbia Family Law Act, SBC 2011 c 25 (BC FLA) contains an expansive definition of family violence to include physical, sexual, psychological or emotional abuse of a family member, as well as the direct or indirect exposure to family violence by a child (s 1). The definition includes attempted physical or sexual abuse of a family member, coercion, unreasonable restrictions on a family member’s financial or personal autonomy, stalking, and intentional damage to property. There is no universally shared definition of family violence, domestic violence, intimate partner violence, or coercive control. What is important to note is that the BC FLA definition is expansive, and includes all forms of violence between family members. Section 8(1)(a) of the BC FLA, which is in the division devoted to out of court dispute resolution processes, requires family dispute resolution professionals to assess whether family violence may be present, the extent to which it may adversely affect the safety of the party or family member, and the party’s ability to negotiate a fair agreement. The term “family dispute resolution professionals” is defined to include family justice counsellor, parenting coordinator, lawyer, mediator, or arbitrator. The assessment for family violence must be done in accordance with the regulations, which only provides guidance for family law mediators, arbitrators and parenting coordinators, not lawyers. (See Family Law Act Regulation, BC Reg 347/2012).The BC FLA therefore suggests that lawyers ought to screen for family violence in order to assess whether it is present and discuss with the client the advisability of using various types of family dispute resolution processes to resolve the matter.
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