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Family violence HELP for legal advisers

Tuesday, January 11, 2022 @ 9:46 AM | By Pamela Cross

Pamela Cross %>
Pamela Cross

Identifying the presence of intimate partner violence (IPV) in a new family law file has never been easy for lawyers, but help has arrived in an important new tool recently released by Justice Canada.

The HELP Toolkit: Identifying and Responding to Family Violence for Family Law Legal Advisers became available in early January, after several years of research and work by Department of Justice (DOJ), the Public Health Agency of Canada and the Department of Women and Gender Equality Canada, which worked in close collaboration with an expert advisory group and subject-matter experts. Feedback was provided throughout the process by legal advisers, frontline service providers, researchers, lawyer associations, provincial and territorial government officials and others, and the draft toolkit was extensively tested across the country.

The toolkit grew from research conducted in 2018 by Luke’s Place of Durham Region, Ontario, that explored the need for family violence screening by family law practitioners. The research report concluded that the presence of IPV is more accurately identified when lawyers use a standardized screening tool.

The new resource also builds on and reflects the changes to the Divorce Act (and, in Ontario, the Children’s Law Reform Act) that require courts to consider family violence, which now has a broad and nuanced definition, when making any decisions relating to post-separation parenting.

Those of us who work with survivors of IPV know that many of them are reluctant to share information about the abuse with others. While there are too many reasons to list here, key among them are such factors as fear of being judged or not being believed, fear of increased abuse or other negative consequences, embarrassment and shame, ongoing love for the partner and a belief that no one can make things better. Her partner has likely told her not to reveal the family secret, perhaps threatening that he will take the children or cause other harm if she does so.

The acronym HELP identifies the overall approach that lawyers are encouraged to take:

  • Have an initial discussion about family violence;
  • Explore immediate risks and safety concerns;
  • Learn more about the family violence to help you determine what to recommend to your client; and
  • Promote safety throughout the family law case.

The toolkit begins by offering suggestions for lawyers about talking with a client about family violence, offering very helpful tools for how to address what can be a delicate or awkward topic. This is supported by supplemental materials that address why clients may not disclose, the impacts of trauma and the types and prevalence of family violence.

The materials encourage legal professionals to understand the gendered nature of family violence as well as the effect of intersectional identities and experiences, with links provided to supplemental materials that explore these topics in greater detail. The importance of returning to IPV discussions throughout the life of the file is stressed since, even when asked, some survivors will take time to feel comfortable enough with the lawyer to open up. As well, the nature, frequency and seriousness of the abuse often changes over the course of the legal proceedings.

As the toolkit points out, lawyers need to be well versed in safety planning and be able to identify points in the case when risk may increase (for example, when legal documents are served or when an important court or mediation date is coming up) so they can help their client protect herself and her children. It includes a chart that sets out risks for continuing violence as well as lethality risk factors, and the supplemental materials include a section on safety planning.

The second section of the toolkit is a legal response guide and explores such topics as parenting arrangements, protecting the safety of the survivor and children and financial issues, looking at each of them in the context of family violence. Litigation abuse (often called legal bullying) is discussed as are the pros and cons of ADR in cases involving IPV.

While the toolkit primarily looks at identifying family violence for lawyers who are retained by the survivor, there is also material to assist those who represent clients who have or may have engaged in family violence.

The HELP Toolkit offers much to support lawyers who want to know more about IPV, while also increasing their skills and comfort in addressing this issue with clients. Lawyers who want to dig deeper into the topic of family violence should consider taking the DOJ’s online course: Family Violence and Family Law for Legal Advisers.

Also important for lawyers is to engage with community organizations providing services to both survivors and perpetrators of family violence, so as to be able to provide meaningful referrals for clients who need those supports.

From my perspective as a lawyer working with survivors of IPV, this toolkit is an excellent resource that will increase the confidence and competence of family law legal advisers, thus increasing access to justice for those who have left abusive relationships and are striving to rebuild their lives free from abuse and the threat of abuse.

Pamela Cross is a feminist lawyer who works on issues related to violence against women and the law. One of her key roles is as the legal director of Luke’s Place in Ontario.

Photo credit / kieferpix ISTOCKPHOTO.COM

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