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Increasing access to justice through lawyer education | Pamela Cross

Thursday, October 31, 2019 @ 1:35 PM | By Pamela Cross


Pamela Cross %>
Pamela Cross
As I mentioned in my remarks when I received the Guthrie Award recently, there has been little attention paid to ensuring that lawyers — particularly family law lawyers — are educated about the issue of family violence. This creates a significant barrier to access to justice for families where violence has been a factor.

Those of us who work in the area of family law all too often are seen as intentionally increasing the antagonism between the parties in order to line our own pockets. Nothing could be farther from the truth. Unlike the public perception of the legal profession, most of us are good and decent people, who want to do the best job we can for our clients.

However, not all lawyers know as much about family violence as they need to if their best job is to be good enough in cases involving intimate partner violence. As a result, survivors of that violence do not always get the access to justice they deserve.

Family law itself is barely hanging onto its place on the curriculum of some law schools, and specific courses that delve into the topic of family violence and its relevance to law are all but invisible. As a result, a law student can graduate with little or no knowledge about something that is almost certain to arise in their work in one way or another, unless they came into law school with background knowledge, lived experience or a drive to learn about the violence that happens in too many families.

Unfortunately, Continuing Professional Development (CPD) on the subject is limited, which further compounds the situation. Kudos to Legal Aid Ontario’s visionary move to provide domestic violence awareness training to all those in its system, making it mandatory for family law lawyers who wish to be on the domestic violence panel. Luke’s Place has developed an online self-directed course for lawyers who want to increase their knowledge and skills so they can better represent clients leaving abusive relationships.

Occasionally, the Law Society of Ontario’s Annual Family Law Summit includes a panel that addresses family violence, and some Ontario Bar Association seminars such as Bread and Butter Issues in Family Law have presentations on a family-violence related issue. Lawyers who participate in such trainings — and I am sure there are more that I have not listed here — receive CPD credits while they increase their knowledge, which makes them a win-win for attendees as well as their clients.

But there is no over-arching, mandatory education program on family violence for all family law lawyers in the province.

The World Health Organization noted in November 2017 that approximately 30 per cent of women around the world are subjected to violence by their intimate partner. It is difficult to determine with complete accuracy how common family violence is in Canada for a number of reasons. Not all women seek help or report to police, not all end their intimate relationship and the term family violence is understood to include different things in different studies, all of which makes it difficult to come up with hard numbers.

However, it is generally accepted that between 25 per cent and 30 per cent of women in Canada are subjected to abuse in their intimate relationship. Men, too, can be victims of intimate partner violence/abuse (IPV).

According to research conducted for the Department of Justice in October 2016, judges assessed that approximately 25 per cent of the cases coming before them involved family violence.

Clearly, this is a topic on which all family law practitioners should be well informed if we are to provide ethically responsible services to our clients.

For clients leaving an abusive relationship to have meaningful access to justice, their lawyer needs to understand the complex, often invisible dynamics of IPV, including the reality of ongoing post-separation abuse and legal bullying. Safety is a real and serious issue for these clients. According to Ontario’s Domestic Violence Death Review Committee, women are at highest risk of being killed by an abusive partner beginning when the abuser becomes aware or believes she is leaving him and continuing for the next several months. A lawyer seeing a survivor of IPV during this period of time needs to be able to identify safety risks and know how to respond to them. This includes having a familiarity with gender-based violence services in the community so appropriate referrals can be made.

Survivors of IPV often experience trauma, which has a profound impact on their ability to engage effectively with their lawyer and their family law case. Without knowledge about how trauma can manifest itself, it is easy to misinterpret a client’s behaviours and actions in a way that does damage to their case. For example, it is not uncommon for a traumatized survivor of IPV to be hostile and aggressive, which can appear to an uninformed observer to be inconsistent with a story of having been abused. With training, lawyers can learn about trauma as well as gain the skills needed to bring a trauma-informed approach to their practice.

Clients leaving an abusive relationship need to be presented with legal options that will address what has happened (and, often, is continuing to happen) to them, which may be different from the legal options that make sense for other clients. In particular, these clients need parenting orders that don’t require close collaboration and communication and that allow the survivor to maintain a high level of privacy from her former partner; something that is less and less common in these days of outcomes that favour “friendly parenting.”

Decisions about the appropriate process must also be based on an understanding about IPV. While mediation may be appropriate, the impact of family violence must be carefully considered before that choice is made, and special safety planning needs to be put in place. Lawyers well informed about IPV/post-separation abuse can advise clients effectively on when an ex parte motion would be appropriate. They can ensure that adequate and relevant evidence about the history of abuse is presented to the court throughout the case.

Learning about IPV can also help family law practitioners understand the toll this work can take on them. Knowing about vicarious trauma means a lawyer can put systems in place to reduce the likelihood it will happen to them and help them know the warning signs to watch for. This will enable them to take on this work over a longer period of time, thus increasing the pool of lawyers who are family violence experts.

Clients fleeing abusive relationships turn to family law to assist them in resolving the inevitable issues that arise upon relationship breakdown, assuming that both the system and its practitioners will be able to help them. With universal standardized family violence education and training for family law lawyers, those assumptions will become a reality and these very vulnerable clients will find their access to justice is increased.

Pamela Cross is a feminist lawyer, who works on issues related to violence against women and the law. She is the 2019 recipient of the Law Foundation of Ontario Guthrie Award for her work increasing women's access to justice.

Photo of Pamela Cross by Janice McLean

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