NOTE: Sina Hariri, who is a current intern with Riverdale Mediation Ltd., recently wrote and contributed this article to the Ontario Bar Association (OBA) website. https://ow.ly/Wctho
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As Family Lawyers, we are one of the critical cogs in a complicated and turbulent machine known as separation or divorce. Our clients come to us for help in navigating these turbulent waters (if they’re fortunate enough to be able to afford us, or to have Legal Aid subsidize their fee). They are embarking on one of the most difficult journeys they have ever experienced, full of emotional, psychological, financial, and legal ramifications lasting potentially the rest of their lives.
Just a few months ago, I had the eye opening experience of taking a training course on screening for family violence as part of my mediation accreditation. It became abundantly clear to me that our profession may have a significant “blind spot” when it comes to family violence. One of the resources for this course included the Domestic Violence Death Review Committee (DVDRC) 2013-2014 Annual Report (link), which provided statistics for some 199 cases they had reviewed from 2003-2014.[1]
Although not surprising considering the emotional turbulence of a separation, it still struck me as concerning that of the 199 cases reviewed by the DVDRC (which involved 290 deaths), 69% of them included “actual or pending separation”, making it one of the top risk factors for lethality within a relationship.[2]
Other risk factors, which if present increase the lethality included:
• a history of domestic violence
• depression of the perpetrator
• prior threats or attempts to commit suicide
• attempts to isolate the victim
• victims with an intuitive sense of fear
• a perpetrator who was unemployed[3]
I had to pause after reading this list of factors because I realized that many of these factors can be present in the files that we carry as Family Lawyers. And considering the potential emotional volatility of separation which can trigger or exasperate any of those factors, I had to ask myself: “Why isn’t this training mandatory for all family lawyers?”
Remaining immersed in so many files, often dealing with similar issues such as divorce, equalization, child custody/access, support and so forth, can lead to desensitization. Many files can “look the same”, and as lawyers we sometimes develop habits in dealing with our cases. For those of us practicing in this area, we must remain vigilant in ensuring that we are up to date on some of the research and training available related to family violence so that we can ask our clients the right questions to canvas for some of these risk factors, and gauge the safety of our clients, as well as their decision-making power. We must also be aware of the many resources available to our clients and encourage them to be used, particularly if family violence is a possibility.
For many of us trained in the legal profession, the law is our tool. We are not trained the way psychologists, social workers, and therapists (to name a few) are, nor should we pretend to be. Although our profession positions us in the front lines and tempts us to wear many of these hats, we should not shy away from the possibility that there are others out there who are better equipped in handling some of the non-legal issues that often exist in a separation.
At a bare minimum, we have to seek out the training and mentorship to ensure that we are competent and sensitive to our clients’ needs. We must be equipped with the tools needed to diagnose some of the more concerning issues, particularly as it relates to family violence. The cost to our clients and especially to children as vulnerable members of our society, if such abuse goes undetected, is too great to ignore.
Unfortunately, this sort of training is not mandatory for Family Lawyers, and the “blind spot” still remains. Citing a final report for the Canadian Bar Association from 2001, a 2008 discussion paper from British Columbia stated that: “[a]lthough there have been some strides in recent years, studies suggest that there is a lack of awareness within the legal system, generally, of the dynamics and implications of partner violence and abuse.”[4]
Since 2001, insufficient measures have been taken to correct this “blind spot” in our profession and the importance of domestic violence screening cannot be underemphasized. Considering the tremendous value it has for us, and more importantly, to the clients we serve, perhaps it should be required if a person decides to practice in Family Law. This is not a new idea, and the Office of the Chief Coroner for Ontario recommended in 2011 that:
- The Law Society of Upper Canada should adopt a policy of ensuring that lawyers who do deal with family clients are aware of the risk and safety issues in domestic violence cases.
- Domestic violence and risk assessment should be part of the mandatory Ethics & Professional Responsibility course to be required by law schools for all students starting with the class of 2015.
- Domestic violence should be part of the now mandatory CLE requirement for practicing lawyers, at least for those who practice family law.[5]
I therefore encourage every Family Lawyer in Ontario (and beyond) to read the findings in the 2012 Annual Report and invest in taking a family violence screening course. Family Law organizations and associations across Ontario must encourage their membership to do the same. The financial cost to us is minimal, the cost of not having this training is too high, and the benefits are too numerous to name. At the very least, the perspective it brings is simply invaluable, and will compliment a Family Lawyer’s arsenal of knowledge, enabling them to better assist their clients during the most emotional and vulnerable chapter of their lives. Taking a family violence screening course is an excellent start to creating a safer environment for all parties involved in a separation and critical to maintaining the integrity of our Family Law Bar.
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Sources:
[1] Domestic Violence Death Review Committee 2012 Annual Report, Office of the Chief Coroner for Ontario, February 2014, found at: https://www.mcscs.jus.gov.on.ca/stellent/groups/public/@mcscs/@www/@com/documents/webasset/ec165340.pdf.
[2] Ibid at page 11.
[3] Ibid at page 11.
[4] Colleen Getz, Safety Screening in Family Mediation, a Discussion Paper, British Columbia Mediator Roster Society, January 2008, at page 6, found at: https://www.mediatebc.com/PDFs/1-23-Resources-(For-Mediators)/Screening_Family_Paper.aspx.
[5] Domestic Violence Death Review Committee 2011 Annual Report, Office of the Chief Coroner for Ontario, September 2014, at page 15, found at: https://www.mcscs.jus.gov.on.ca/stellent/groups/public/@mcscs/@www/@com/documents/webasset/ec160943.pdf.
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Sina Hariri is a family lawyer, ADR instructor, and problem solver. He has a law degree from Ontario and the United States (LLB/JD) and is a graduate of Osgoode Hall’s Masters in ADR program. He is a current intern with Riverdale.
