Author Archives: Deanne Sowter

About Deanne Sowter

Deanne Sowter is a doctoral candidate and Vanier Scholar at Osgoode Hall Law School. She is also a Research Fellow with the Winkler Institute for Dispute Resolution. Deanne’s research focuses on family law, gender-based violence, and legal ethics, and it has been supported by SSHRC and several prestigious fellowships and scholarships including the Honourable Willard Z Estey Teaching Fellowship and the OBA Foundation Chief Justice of Ontario Fellowship in Legal Ethics and Professionalism Studies. Deanne’s work has been published in several peer-reviewed journals including the Dalhousie Law Journal, the Canadian Bar Review, and the UBC Law Review, and it has been cited by the Supreme Court of Canada. She taught as an Instructor at the University of Calgary and as an Adjunct Professor at Western Law. Deanne has a JD from Osgoode Hall Law School, an LLM from the University of Toronto, and is a collaboratively-trained family lawyer.

What is Non-Adversarial Advocacy?

By: Deanne Sowter

PDF Version: What is Non-Adversarial Advocacy?

There is no provision in the Federation of Law Societies Model Code that specifically regulates non-adversarial advocacy. The Code has an Advocacy section (R 5.1) and it distinguishes advocacy in an adversarial process, but it does not have a corresponding section for advocacy in a non-adversarial process. There is no universal definition of non-adversarial advocacy. In 2016, I conducted empirical research on advocacy in the family law context, and drawing from that I argued that the Code needs to be updated to include non-adversarial advocacy. (See here.) In that study, I talked to collaborative lawyers and family lawyers who have a settlement-oriented practice. Those processes inform the type of advocacy expected and required. However, not all dispute resolution processes can be neatly packed into one category or the other, nor do all disputes involve sides that subscribe to the same approach to advocacy. In this post, I question whether it is the process that distinguishes adversarialness. Continue reading →

A Lawyer’s Duty to (Sometimes) Report a Child in Need of Protection

By: Deanne Sowter

PDF Version: A Lawyer’s Duty to (Sometimes) Report a Child in Need of Protection

Everyone has an obligation to report when they have reason to believe that a child is in need of protection, including lawyers – except where that information is protected by solicitor-client privilege. If the information is confidential a lawyer is required to report it just like anyone else; but if the information is protected by solicitor-client privilege, a lawyer can only report it pursuant to an exception. The future harm exception provides a lawyer with the discretion to disclose a limited amount of qualified information to try to avert serious physical or psychological harm, or death. Continue reading →

Coercive Control: What Should a Good Lawyer Do?

By: Deanne Sowter

PDF Version: Coercive Control: What Should a Good Lawyer Do?

Matter Commented On: Federation of Law Societies Model Code of Professional Conduct, Rule 3.3-3

I am currently conducting research to determine whether coercive control can be considered psychological harm for the purpose of the future harm exception to confidentiality and solicitor-client privilege. (FLSC Model Code R 3.3-3; Smith v Jones, [1999] 1 SCR 455 (SCC)) My research is supported by the OBA Fellowship in Legal Ethics and Professionalism Studies. In that research I’m determining whether a lawyer can disclose, but doing that research has provoked me to wonder whether a lawyer should disclose.

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Lawyer (In)competence and Family Violence

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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