Changes needed for mandatory domestic violence screening by family lawyers

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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.

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.

Article first appeared in Canadian Lawyer Magazine