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Changes needed for mandatory domestic violence screening by family lawyers

As family lawyers, reports of family violence by clients are a common occurrence. How we respond to those reports can directly impact our clients’ safety and even survival. 

The criminal case against Mohammed Shamji has been in the news of late. Shamji, a surgeon and father of three, was charged with murdering his wife, Elana Fric-Shamji in 2016. Shamji pleaded guilty to second degree murder in April. It is significant that the murder was perpetrated a mere two days after Fric-Shamji had initiated a separation from her husband. 

The circumstances of the Shamji murder are not novel; the statistics show that the majority of family violence fatalities occur in the context of an actual or pending separation. Family lawyers, who are often the first point of contact in a separation, are, therefore, uniquely positioned to address these concerns head on in order to ensure the safety of their clients and their children. Given the potential for dire consequences, it is of concern that there is not a clearer legal framework through which to approach these issues.

Domestic violence is complex, and there are a multitude of contextual factors at play that determine whether a victim discloses the violence, the timing of that disclosure and the extent. There are often secondary issues such as trauma, cultural factors and mental-health issues also at play that compound the complexity of these matters. 

While lawyers are not expected to be social workers or mental-health professionals, these cases require particular sensitivity and training to ensure cases are appropriately screened at the outset to determine the appropriate course of action and to ensure that the necessary safeguards are in place. There is no such screening currently mandated in Ontario. As a result, the manner in which family lawyers approach these issues is largely improvised. When we conduct informational interviews at the outset of a matter, we may fail to ask the appropriate questions to discern the relevant facts, rely on our clients to disclose abuse, allow our personal biases (whether consciously or unconsciously) to assess risk and fail to establish the trust and confidence necessary for our clients to feel safe in confiding in us. Even where domestic violence is identified, we may miss the often subtle warning signs that there is an imminent threat to our client’s safety or fail to address the matter strategically in a way that minimizes the risk of harm.

Domestic violence screening is required in mediation and arbitration, so that the mediator or arbitrator can determine whether there are any power imbalances that would limit the parties’ ability to engage in the  process. This type of screening should be adopted in the family law context. To this end, the federal Department of Justice is in the process of developing a screening tool and online domestic violence training that can be accessed by family law practitioners, which will be available by 2020.

Given the stakes, this training and use of screening tools should be mandatory and required of all lawyers providing family law services, and it should be governed by the Law Society of Ontario as a condition of our continued practice in this area of law. 

Domestic violence training is needed so that we can understand the intricacies and power dynamics involved in domestic violence cases so that we may better understand our clients’ circumstances and ultimately become better advocates for our clients in the courtroom. 

Domestic violence cases do not fit within the traditional rubric of the evidentiary-based legal system.  There is a tendency to evaluate our clients’ cases based on their ability to prove them. This approach is problematic in the context of domestic violence cases, given that many victims of domestic violence do not report the abuse and, therefore, there may not be a clear evidentiary “record” of it by way of police report, doctor’s report or otherwise. This tendency can be avoided through adequate training.

Where domestic violence is identified through training, we should be actively involved in conducting risk assessments in order to determine the appropriate, safety-focused course of action. There is a tendency to delegate this work to outside agencies, including shelters and social workers. This is misguided, as the legal strategy and approach to a matter should be considered as part of an overall safety plan, and it will involve such considerations as the timing of service of documents and whether an ex parte motion is appropriate. We should work closely with the community agencies and supports involved in the matter to ensure consistency of care. Given that the level of risk is variable, we should ensure that we are engaging in ongoing risk assessments as the matter unfolds. Through funding by the Law Federation of Ontario, Deepa Mattoo of the Barbra Schlifer Clinic is currently in the process of developing a risk-assessment tool for family law practitioners to assist in ascertaining the level of risk and the appropriate action.

As family lawyers, I believe it is our ethical duty to ensure we have the training and skills to effectively address, screen and assess domestic violence cases. We should be proactive in seeking out training these tools and not simply wait until they are mandated to implement. The Shamji case serves as a reminder that the stakes are too high not to do so.

Whitney Smith is a family law lawyer practising in the Hamilton, Ont. area. She can be reached at whitney@vandeputtelawpc.ca.

  • Risk Assessments an Important Tool

    Kerry Gearin
    There are a few Risk Assessment Tools available for some years now. I like Gavin de Becker's Mosaic at https://www.mosaicmethod.com/ . I use this and add questions according to the client's responses to gather facts that are relevant to assessing risk. Risk assessments really should be taught during and after law school for all lawyers. Domestic Violence issues arise in all areas of law, sometimes quite unexpectedly. Look at banking, where some bankers still do not insist on spouses getting independant legal advice before signing on to pay their spouses debt. Usually when violence occurs, people immediately jump to blame judges and lawyers without having any facts. This does not help anyone learn how to reduce violence post separation. Many myths abound, but there are plenty of resources to learn. Since my call to the bar in 2000, I've been promoting Domestic Violence Preliminary Risk Assessments & Recommendations, having learned from the likes of Ontario's own Deborah Sinclair and Dr Peter Jaffe and others. I feel if more lawyers ask for this, even more judges may feel inclined to order them. They are briefer than full Parenting Assessments, focusing on Risk Reduction protocols. Legal Aid offers excellent Domestic Violence training by Pamela Cross. There are so many resources for lawyers including from the University of Western Ontario's CREVAC who offer some online seminars. Family Services Toronto teamed up with other agencies and individuals [including yours truly] to create a Tip Sheet for Lawyers to become more Trauma Informed while providing Family Law services to Domestic Violence Survivors. This is such an important topic. It's essential to continue learning. Kerry K Gearin, Ontario Family & Child Safety Lawyer
  • Great article

    Maria
    Great article.
  • Screening tools must include all forms of abuse

    Christine Guetre
    Violence = Abuse Abuse = Violence To every lawyer practicing Family Law; Implementation of the proposed screening for domestic violence is of immeasurable benefit to those affected clients who are seeking fair and equitable treatment by the legal system and courts. Here’s the glaring omission; not all violence is physical, and the victims of emotional, psychological, sexual, financial, and verbal abuse need as much protection and sensitivity as the victim who shows up with cuts, bruises and broken bones. The screening process must include all forms of domestic violence, because most abuse doesn’t start with a slap, punch, shove, kick or chokehold. The proposed screening must include sensitivity training. The article states that lawyers are not counsellors - this is absolutely correct, however the lawyer must understand and be empathetic to what their client/potential client has endured. They must be willing to show humanity to their client. Long before the survivor of domestic abuse arrives in the waiting area of a law firm, she/he has already been systematically judged and made to feel irrelevant by their spouse, the police, their friends, family, church, bank and more. You may not be the first lawyer they have sought out. The survivor does not have faith or trust in you, but they hope you will be different. Firms electing to adopt proper domestic violence screening as part of their Family Law case management process would be positioning themselves as a leader amongst their peers. They would potentially be saving lives and being the catalyst that finally shows the survivor that there is hope for a future free of abuse.
  • Heart First Lawyering

    Kerry Gearin
    So true Christine. Lawyers must earn our client's trust. They may not always feel ready to open up fully in the first intakes. Sometimes women have had to convince themselves that things were not that bad, just to cope. We may be their first opportunity to fully tell someone what they went through. Warm, kind listening skills help. Here's to "Heart First" Lawyering. Kerry K Gearin, Ontario Family Lawyer