AuthorSowter, Deainne


Imagine a newly separated couple who have each retained collaboratively trained lawyers. The parties both independently decided to use the collaborative process (CP) to negotiate the terms of their separation. (1) Now imagine the wife told her lawyer the full extent of the violence that her husband inflicted on her throughout their marriage, and that she was terrified about what would happen if she tried to leave him. Giving her lawyer that information would trigger a series of ethical issues for a collaborative lawyer. Per the CP tenet of transparency, she would need to tell her counterpart counsel that her client has accused her spouse of family violence, and they would need to safety plan together. They would have a conversation that would create tension with both lawyers' duty of loyalty. Having that conversation would also put the husband's lawyer in an impossible position. She would now know that her client's spouse is accusing him of family violence. Even if the accusation were true, the lawyer must uphold her fiduciary obligation and duty of honesty to her client and tell him what he has been accused of. If he is as dangerous as his wife says he is, how will he respond? Alternatively, the wife's lawyer could proceed without disclosing to her counterpart counsel, but then she has violated the principles of CP. This type of dilemma is at the heart of this paper.

In this paper, I explore the ethical challenges of disclosing information in CP when there is family violence. A lawyer has an ethical duty of loyalty to her client, and she is required to keep her client's confidences, with limited exceptions. (2) It is a near-absolute obligation to keep her client's secrets. However, CP is built on good faith and transparency. (3) A collaborative lawyer is contractually required to disclose information that is relevant to the matters to be resolved. Family violence, however, requires a lawyer to be alert to the risk of harm and to take it into consideration when advising clients. These three elements--the duties of loyalty and confidentiality, the contractual obligation of full disclosure, and the presence of family violence--can create ethical challenges.

The ethical dilemmas are different for the abuser's lawyer compared to the victim's lawyer, and they vary depending on the information that needs to be disclosed and the type of violence. This paper presents three types of scenarios that trigger the duties of confidentiality (4) and loyalty. (5) There are, however, a wide range of ethical issues that are triggered when dealing with family violence that relate to lawyer competence, (6) screening for family violence, (7) a lawyer's ability to disregard instructions, (8) and the duty of honesty and candour. (9) While each of these will be touched on, the focus in this paper is on the duties of confidentiality and loyalty.

Part I of this paper examines family violence and briefly outlines the family law legislative requirements to consider family violence. Part II considers the lawyer's duty of loyalty and her obligation to keep her client's confidences. Part III looks at CP and disclosure of information. Part IV presents a proposed solution in the form of CP legislation, amendments to the Model Code, and the introduction of practice guidelines. The proposed legislation provides a framework for CP lawyers to respond to ethical challenges from family violence in a way that meets client interests. The proposed Model Code amendments require that all family law lawyers be competent to handle family violence cases, and they provide flexibility to consider risk of harm. The proposals also allow CP lawyers to disclose information when necessary to prevent family violence. The proposed guidelines suggest protocols for ensuring a file is appropriate for CP. For CP to be effective in cases involving family violence, the law governing lawyers needs to change and CP needs legislated structure. Finally, my aim is not to minimize the issues posed by family violence for all family law lawyers. Though CP presents some unique challenges that I focus on in this paper, some of this discussion is relevant to non-CP lawyers too. As such, where possible, I have crafted my recommendations to be as broad as possible. Family violence is an important public policy consideration that warrants the evolution of both family law and the law governing lawyers.



    Over the last four years in Canada, a woman or girl has been killed every 2.5 days. Two-thirds of those women were killed by an intimate partner or male relative. (10) In 2017, intimate partner violence (IPV) represented 30% of all police-reported violent crime in Canada, affecting almost 96,000 victims. Eight in ten victims of IPV were female. Women are more likely to be assaulted by an intimate partner than by someone else. (11) In families where IPV occurs, child abuse often occurs as well. (12) In 2017, there were 59,236 child and youth victims (aged 17 years and younger) of police-reported violence in Canada. Of those, 30% were victimized by a parent, sibling, or other family member. (13) Children are also affected by witnessing IPV and are at risk for emotional and behavioural problems similar to children who are abused directly. (14)

    The Ontario Domestic Violence Death Review Committee annually reviews deaths of persons that occur as a result of domestic violence in order to make recommendations to prevent such deaths in the future. (15) Between 2003 and 2017, they reviewed 311 cases involving 445 deaths; 72% of these cases involved a history of domestic violence, and 67% of these cases involved a couple with an actual or pending separation. (16) A history of domestic violence and an actual or pending separation are the top two risk factors of death at the hands of an intimate partner. (17)

    The post-separation period carries unique risks for victims of family violence. The period immediately following separation poses the highest risk to victims of family violence. (18) Between "2007 and 2011, a woman's risk of being killed by a legally separated spouse was nearly six times higher than their risk from a legally married spouse." (19) Moreover, 40% of women who were in a violent relationship experience violence post-separation; of those, 24% said the violence became more serious post-separation. (20) Depending on the motivation of the abuser, he may use different tactics for different purposes. (21) For example, an abuser may seek to force his spouse back to the relationship by using financial abuse or reassert control by using coercive behaviours, or he may physically assault her to punish her for leaving. (22)


    There is no universally shared definition of family violence, (23) domestic violence, (24) IPV, or coercive control. The terms family violence and IPV are often distinguished based on who the abuser and victim are--that is, whether the abuse is between intimate partners (25) or instead occurs within an expanded definition of family that includes children and other household members. (26)

    What is critical to recognize is that not all family violence is criminal in nature. The Department of Justice notes that "psychological abuse, [including] ridiculing, constantly criticizing, or threatening deportation, are abusive in nature and are often a precursor to physical or sexual violence, but do not constitute criminal behaviour." (27) This broad type of violence is significant when considering how lawyers ought to manage information related to coercive control. Coercive control is a type of IPV. (28) One definition of coercive control is that it is an "ongoing pattern of domination by which male abusive partners primarily interweave repeated physical and sexual violence with intimidation, sexual degradation, isolation and control." (29) Control is the central feature in all definitions of coercive control. (30) The abuser uses tactics to eliminate the need for physical abuse but will use it if necessary. (31) The effect is to entrap the victim in a hostage-like way, compromising her physical and psychological integrity. (32) The challenge with identifying coercive control is that these behaviours are not criminal and do not seem urgent in isolation, but taken together, the Department of Justice has said they form the "most serious type of violence in the family law context". (33)

    In June 2019, the federal government amended the Divorce Act to introduce family violence into divorce law (Bill C-78). (34) The change follows the British Columbia Family Law Act (35) by including a broad definition of family violence including coercive control, stalking, psychological and financial abuse, and threats or harm to animals or property. (36) Once the amendments come into force, family violence will be a factor in considering the best interests of the child when making parenting and contact orders and in relocation applications. (37)

    The BC FLA requires lawyers to assess whether family violence may be present, the extent to which it may adversely affect the safety of the client or family member, and the client's ability to negotiate a fair agreement. (38) Lawyers are also required to discuss the advisability of using various family dispute resolution processes to resolve the matter. (39) Assessment must be in accordance with the regulations, but there are currently none for lawyers. (40)

    Provincial family law legislation varies wildly on this subject. (41) The Alberta Family Law Act includes a narrow definition of family violence as a factor in the best interests of the child analysis. (42) The definition includes family members, but it is limited to physical harm and does not include coercive control. The Ontario Family Law Act is silent with respect to family violence, and the Children's Law Reform Act only includes violence and abuse as...

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