Key Messages

It may be difficult for family law advisers to identify and respond to family violence, given the wide variety of personal and social factors involved. Below are a few of the recommended practices that emerged from the thought papers. For a more comprehensive summary of the thought papers by population group, please see Annex A.

Barriers to disclosure

Victims and survivors face many barriers in disclosing their experiences of family violence, such as feeling ashamed, being scared that their children will be taken away, fearing retribution, being scared of not being believed, and not recognizing that their experiences constitute abuse.Footnote9 The thought paper experts shared that victims from specific population groups may experience these barriers in addition to sociocultural or religious barriers. For instance, people with disabilities may choose not to disclose out of fear of losing their caregiver or being forced to relocate to an inaccessible place to live. 2SLGBTQI+ clients may fear that their experiences will be classified as “mutual aggression".Footnote10 Clients whose first language is neither English nor French may be unable to make a disclosure due to a language barrier. Clients from collectivist communitiesFootnote11 or with particularly strong ties to their community may feel reluctant to disclose family violence to a stranger. Some clients may also fear that they could be at risk of deportation from Canada.

Identifying family violence when representing clients from diverse backgrounds

Initial and subsequent meetings with a client provide opportunities for legal advisers to establish rapport, or trust. This trust can be built by asking the right questions at the right time in a culturally sensitive manner. To be able to do so, the subject-matter experts encourage legal advisers to understand their own inherent biases and to be mindful of their tone, manner, assumptions and body language, as this can affect the establishment of trust. For example, active listening and open-ended questions can help a victim of family violence feel more comfortable. Avoiding heavy use of “legalese”—language only commonly known within the legal profession—and relaying concepts in a way that makes sense to the client are also practices that should be adopted, especially when interacting with clients with limited English/French language skills.

Clients may not spontaneously disclose experiences of family violence to their family law legal adviser, and they may not know that what they are experiencing necessarily constitutes family violence. For example, gay clients may not identify their partner’s behaviour as abusive due to internalized heteronormativity that dismisses or devalues their experiences as incidents where “boys will be boys.”

Instead of disclosing their experiences, clients may present some signs of abuse or trauma that can prompt legal advisers to ask them questions about family violence. However, it is important to recognize that these signs may be due to past trauma and may not be related to the family law matter or their ex-partner. For instance, newcomer clients may have experienced trauma in their country of origin or during their migration. Likewise, 2SLGBTQI+ clients may have experienced “betrayal trauma”—trauma stemming from ongoing stress that 2SLGBTQI+ individuals experience when they are mistreated or their trust is violated by people and institutions on which they depend for support and survival. This trauma can be caused by institutional discrimination, anti-2SLGBTQI+ opinions, childhood abuse, politics, stress of concealment, media, personal encounters, and the devaluation of their lives and relationships by others.

It should also be noted that clients may exhibit signs that are not necessarily obvious indicators of abuse. For clients with disabilities, they may appear to be uncomfortable, extremely apologetic or anxious due to years of disability oppression—where they have been devalued, stigmatized, seen as a threat and a burden, and excluded from larger society through educational segregation and institutionalization. At the same time, some clients may not present themselves as a “typical victim” due to individual circumstances; for instance, they may appear to be unsympathetic, hostile and disengaged.Footnote12 As a result, legal advisers may find it necessary to introduce the topic of family violence themselves even if there are no signs of family violence in order to create an opportunity for clients to disclose their experiences.

Understanding the client and their community

While there may be some general indicators of family violence,Footnote13 legal advisers should also consider the individual circumstances of the client, as well as the client’s family dynamics. Questions should be asked about the client’s relationship with their partner and their family dynamics, and these questions should be tailored to the individual client. For instance, if a legal adviser is representing a 2SLGBTQI+ client, they could ask whether the client is concerned that the other party may “out” them to their friends, family, colleagues or others.

The thought paper experts also encourage legal advisers to focus on their client’s personal and familial ideologies and circumstances, as opposed to stereotypes about culture, religion, ability, gender or sexual orientation. This can be achieved by adopting a person-centered approach, which places an emphasis on the client’s experiences by asking certain key questions to better understand and situate the client’s contextual environment and background. For instance, what is the importance of religion in resolving disputes in their relationship? Is there any diversity in religious views in the family and community? Has the family relationship changed throughout the immigration process?

Providing an inclusive environment for clients

To help effectively identify and respond to family violence in a family law case, the legal adviser’s office and practice should be inclusive to clients. An inclusive practice may help clients to feel more comfortable and at ease, which in turn may help improve communication and trust between clients and their legal advisers. One way to create an inclusive environment is to make the physical office accessible to clients. Does the office have accessible entrances? Is it accessible by public transportation? Legal advisers should take the time to do a walkthrough of their office location to assess whether it is accessible to their clients. Another way to create an inclusive environment is by showing supportive symbols. This could include displaying symbols like the 2SLGBTQI+ flag or the International Symbol of AccessFootnote14 to inform clients that the office is a safe space.

An inclusive environment can also be created through office procedures, policies and protocols. What protocols does your office have in place to respond to the individual needs of clients during meetings? It can be helpful to ask clients ahead of the first meeting whether they have any accessibility needs or preferences. By asking clients this question, it provides legal advisers sufficient time to ensure appropriate supports are in place prior to the meeting, such as Braille signage. There should be consideration, for example, about how to ensure adequate access to interpretation for clients who do not speak English/French or who require an American Sign Language/Langue des signes québécoise interpreter. Legal and social services do not always have interpretation services readily available and tend to use the services of community members as interpreters. This poses some concern, as the community member may know the client or the community member may disapprove or be judgemental towards the client reporting abuse, which may deter the client from disclosing their experiences. In addition, providing clients with alternative mediums of communication, such as through writing, may make it easier for clients with a language barrier to share their experiences.

The thought paper experts also emphasized the practice of cultural humility,Footnote15 as this will help legal advisers to maintain a sensitive and nonjudgmental attitude and to be open to clients’ individual lived experiences. The experts also recommended that legal advisers make an effort to learn about their clients’ communities, including learning about different practices that may be followed by some members of a community (e.g., arranged marriages), and understanding what nomenclature to avoid, such as words that perpetuate stereotypical norms or are offensive to clients (e.g., using the “dead name”Footnote16 of a trans client). Additionally, it was suggested that legal advisers should undergo continuous professional development and training, including equity and diversity training, to help them critically reflect on their own internalized biases, assumptions, and practices when representing clients from different backgrounds. Training may include but is not limited to learning about unconscious bias, critical self-reflection, anti-racism, anti-oppression, cultural sensitivity, and intersecting oppressions. For a more comprehensive list of training avenues, please see Annex A.

Connecting clients to community-based resources

According to the thought paper subject-matter experts, family law legal advisers should connect with support services in their area and build relationships with service providers. Not only does this help to facilitate referrals, but it also provides legal advisers the opportunity to learn more about resources and research that may be relevant to the clients they serve. For instance, these community organizations may be able to share guidance with legal advisers that can be subsequently incorporated into their practice (e.g., how to make the environment more inclusive).

When making referrals, it is recommended that legal advisers ask their family law clients what kind of informal supports (e.g., friends, family, religious/spiritual leaders, community) they would like to integrate with formal support resources (e.g., shelters, counselling). The combination of the two types of support may help legal professionals respond better to the complex needs of victims of family violence. Some clients may prefer to access informal supports, and they may also have some concerns about accessing formal community resources such as the associated cost of accessing the service, or the risk of compromising their religious integrity by accessing formal support services. In any case, it is a good practice for legal advisers to create a list of formal resources that could be helpful to clients, including local population-specific organizations and family violence services.

It is important to understand that many community resources provide standardized services that are based on Eurocentric/Western models, and therefore do not consider the different worldviews of individuals from other backgrounds in their policies, initiatives or outreach programs. For instance, there are family violence social services that are inaccessible for people with disabilities. Non-heteronormative individuals, individuals with disabilities and individuals from non-European descent are also more likely to face racism and discrimination, and be stereotyped, when trying to access resources and services.Footnote17

Exploring legal issues specific to the client

When representing family law clients, there is no one-size-fits-all approach. It is important to consider what additional legal factors need to be considered in the family law case to accommodate the client’s needs. This can be achieved by asking clients what they wish to gain from the family law process. According to the subject-matter experts, legal advisers should avoid attempting to homogenize their clients’ experiences, especially if the client and the legal adviser are from the same population group. Instead, they should consider their clients’ needs and how these are influenced by many factors, including their background. Based on this information, legal advisers can tailor the legal strategy to best meet the wishes, needs, context and values of their client. For instance, Muslim clients may require an Islamic divorce in addition to a legal divorce. Some clients may require religious consultations or may turn to religious leaders for advice on how to navigate a conflict, such as a family law issue. Immigrant clients may have concerns about the potential flight risk of their partner and children, and may need to seek a court order requiring surrender of the children’s passports. Clients with learning or mental health disabilities may face challenges with meeting legal capacity requirements, meaning they may not be able to understand information needed to make a decision and appreciate the consequences of making that decision. This may require them to have a guardian or trusteeFootnote18 who can make decisions and give consent on the client’s behalf. It is also important that legal advisers take the time to provide a detailed explanation of every step of the legal process, including what the client can expect from the family justice system and what will be expected of the client, in a way that the client understands.

Equally important is considering how other legal issues, such as immigration law and criminal law, may intersect with the family law case. For instance, clients without permanent residence or Canadian citizenship may have concerns about their immigration status or fear deportation, which may require a referral to an immigration lawyer or to information that can help correct misinformation about Canadian immigration policies. While some victims of family violence may seek a legal response in the criminal justice system, legal advisers should be aware that others may be reluctant and fearful of contacting the police as a result of previous negative experiences with law enforcement in Canada or in a previous country of residence. For instance, 2SLGBTQI+ clients may fear that their complaints will be dismissed by the police or that the abuse will be classified as “mutual aggression” given the lack of knowledge around the complexities of same-sex relationships. Clients may also be unaware or have limited knowledge of Canada’s criminal laws; as such, legal advisers should present the information to clients in a simple manner, without excessive use of legalese, and provide the client with sufficient time to process the information before making a decision.