Best Practices for Representing Clients in Family Violence Cases

By Cynthia Chewter[1]

Introduction

Most family law lawyers will eventually represent a client leaving an abusive relationship. Unfortunately, even advanced family law courses do not teach lawyers how to navigate these exceptionally challenging files. This paper is designed as a primer for both new and experienced lawyers taking family law cases in which there is violence.[2]

Understanding Family Violence

Violence is an all too prevalent feature of family life. According to a 2005 report from Statistics Canada, seven percent of Canadians reported that they experienced family violence in their married or common law relationships within the past five years.[3] Twenty-one percent of women and sixteen percent of men reported experiencing family violence from a partner in a previous relationship.[4] Many of these Canadians must have ongoing contact with their former spouses to finalize terms of separation or for custody, access and support of children. Almost half of women leaving abusive relationships report that the violence continues after separation[5], so a thorough knowledge of the dynamics of family violence is crucial to family law practitioners.[6]

The Cycle of Violence

Family violence tends to follow a predictable three-phase cycle first described by Lenore Walker[7]:

The cycle of violence repeats itself at varying intervals from weeks to months or even years. Without intervention, it is virtually inevitable that the violence will continue. It may also increase in frequency or severity. At some point – often after several attempts – the abused woman may leave and seek legal advice.

Part I: Intake

Every new family law client should be screened for family violence.[8] Be aware that some clients may not disclose abuse early in the solicitor-client relationship, even when asked directly. Immigrant women and women from visible minority groups may be particularly reluctant to disclose personal information to police or lawyers.[9] Clients may not mention (or recognize) non-physical forms of abuse, such as verbal, emotional, financial or sexual abuse. Some women may not be aware that they have a right to refuse sex with their husbands.

Family lawyers should address the possibility of undisclosed spousal abuse if: the client rejects or is hesitant to pursue a valid claim for spousal support, she does not want a division of property, or if she appears willing to agree to an improvident settlement proposed by her spouse (often signing away her interest in the matrimonial home and her spouse's pension with little or nothing in return), notwithstanding advice to the contrary. She may be reluctant to remain in the matrimonial home and may have little knowledge of family financial affairs and no access to bank accounts or important documents. She may show indifference to dividing household contents or leave valued possessions behind.[10]

Sensitive interviewing practices

Particular care should be taken if it is necessary to explore a client's reasons for staying in or returning to an abusive relationship. Insensitive questioning can suggest that she is partly to blame for the violence for not leaving sooner. The reality is that women leaving abusive relationships face many difficult hurdles. They may be reluctant to leave, out of fear for their safety or the safety of their children. They may face systemic barriers (such as poverty or fear of deportation). They may experience religious, cultural or family pressure to remain in the relationship or submit to a spouse's authority.[11]

The Lawyer-Client Relationship

Family violence cases tend to have high lawyer involvement and many crises along the way. The client may insist on accepting an improvident settlement proposal or may vacillate, unable to give instructions. Some clients will cancel appointments and fail to respond to phone calls or letters.[12] Others will call almost daily and seek advice before making even the smallest life decision.[13] It is important to remind the client that lawyers are not trained as counselors or therapists and make referrals as needed.

Because abusive relationships involve extreme power imbalances, it is necessary to minimize any imbalance of power in the lawyer-client relationship. One effective way to do this is to ensure that all information is shared with the client in a meaningful way and that she is involved in decision-making regarding her case.[14]

Assessing the Risk

Homicide occurs in less than one percent of abusive relationships,[15] but every family violence case must include a risk assessment. Although the discipline of risk assessment is still young,[16] we do know that more than three-quarters of spousal homicide victims are female. Young women (age 15-24) in common law relationships face the greatest risk.[17]

It is important to note that women may be at risk even if they do not feel they are in danger. In one American study, approximately half the females killed did not feel they were at risk.[18]

Risk Factors

There is no way to predict which abusive relationships will end in homicide but there are a number of common risk factors. In order of predictive value, they are:[19]

  • A history of family violence (there was a reported history of family violence in sixty percent of Canadian spousal homicides between 1994-2003);[20]
  • Separation or attempted separation, nearly always by the woman;
  • Obsessive possessiveness or morbid jealousy by the male spouse, often accompanied by suicidal ideations, plans or attempts, depression, sleep disturbances or stalking; (jealousy was the stated motive in twenty-one percent of Canadian spousal homicides between 1994-2003);[21]
  • Prior police contact;
  • Threats to kill, often including detailed modus operandi, communicated to the victim or others;
  • Prior criminal history; (fifty-three percent of accused in Canadian spousal homicides between 1994-2003 had one or more previous criminal convictions);[22]
  • Excessive drinking or drug use, particularly immediately prior to the killing; (alcohol and/or drug use was present in sixty percent of Canadian spousal homicides between 1994-2003);[23]
  • Victim had a restraining order; (between 1991-1999, eight percent of accused had a restraining order against them at the time of the killing);[24]

Additional risk factors identified in another study include:[25]

  • Access to firearms; (thirty-one percent of women killed in Canada between 1994-2003 were shot);[26]
  • If the abusive spouse is unemployed;
  • If the woman has a child from a previous relationship living with her;
  • If the partners never lived together; and
  • Forced sex.

This is not an exhaustive list. It is important not to leave women with a false sense of security, as spousal homicides can occur where few or none of these risk factors appear to be present.[27]

When is the most dangerous period?

Most women killed by their spouses are killed after leaving the relationship or while attempting to leave.[28] Nearly half (forty-nine percent) of all spousal homicides occur within two months of separation, often when the woman returns to the family home to retrieve belongings.[29] Another thirty-two percent occur between two and twelve months of separation, and nineteen percent occur more than a year after separation. Almost half of spousal homicides are followed by a suicide (thirty-nine percent), or attempted suicide (six percent). Separation significantly elevates the risk of homicide for abused women, but not abused men.[30]

Safety Plans

A local shelter or Women's or Family Resource Centre may be able to help the client develop a safety plan for herself and her children. If the client feels she is in danger, encourage her to take her feelings seriously and protect herself and her children. Make sure she knows that the danger is greatest when she makes the decision to leave. Police or a shelter may be able to loan the client a 911 cell phone or panic button until the acute danger passes.

The American Bar Association website contains some excellent advice for lawyers on safety planning in family violence cases.[31] The Peel Committee Against Woman Abuse offers safety-planning advice for women in thirteen different languages.[32]

Deciding whether to take the file

Family violence cases are probably the most challenging cases for a family law lawyer, but they can also be amongst the most rewarding. Support from professionals, family and friends can be the factor that empowers women to exit the cycle of violence.[33] There is a special satisfaction that comes with protecting an abused client's rights.

As family lawyers develop expertise in handling family violence cases, they will find they get an increasing number of referrals to do this work. Unfortunately, carrying too many high conflict files can lead to burnout. In the author's experience, lawyers can maintain a balanced practice by ensuring that no more than twenty to twenty-five percent of their cases involve ongoing family violence.

Are lawyers at risk?

While it is rare, there have been instances of lawyers being attacked or threatened by abusive spouses. Review office security procedures on a regular basis and ensure support staff are aware of which files involve family violence. Decide what level of interaction the office will permit a self-represented spouse to have (only in writing? no in-person contact?).[34] Maintain vigilance particularly before and after Court hearings.

If the client is the alleged abuser

It is always difficult to probe with clients whether they have committed acts of violence against a spouse. Most will deny any abuse or insist that they are the one who was abused in the relationship. One way to canvass this issue is to ask if the client's spouse has ever accused him of family violence, or whether he anticipates such an accusation.

The key to representing the alleged abuser in a family violence case is to set ground rules at the beginning of the solicitor-client relationship and maintain control of the file. The client should understand that if the ground rules are not respected, the lawyer will withdraw.

Basic advice for every client in these circumstances should include advice to help the client to protect himself from further allegations. He must respect and comply with all Court orders (including no contact orders). Contact with his spouse should be minimized or eliminated. Access pickup and drop off should occur in the presence of a witness. If both parties consent, phone conversations can be taped. Encourage him to use the maintenance enforcement program to eliminate disputes over support payments.

Consider referring the client to counseling and a parent education program. If the client is reluctant to participate, the lawyer may need to explain how participation will assist the client in achieving the objectives he desires by addressing anticipated judicial concerns.

In some cases, if the client is facing charges, it may be prudent to await the outcome before finalizing terms of custody or access. One Nova Scotia study found that only eleven percent of family violence charges result in convictions after trial. Eight percent result in acquittals. Ten percent of family violence charges are withdrawn and one percent are stayed. Sixty-one percent are resolved with a plea of guilty.[35]

Lawyers representing abusive spouses also need to consider whether litigation is being used to perpetuate a pattern of dominance and control or to harass an abused spouse, and ensure that the Court's process is not co-opted in this manner. Lawyers should not allow themselves to be manipulated or controlled. It does not serve the client to carry out his instructions without question or to take an untenable position in Court simply because it is what the client wants. A lawyer has many clients but only one reputation.[36]

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