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The CBA recommended that the Model Code include a section for non-adversarial advocacy as well as distinct standards for the practice of family law. To be sure, there are unique qualities to family law, but the question is whether family law is so different that distinct professional rules are required for lawyers. In this post, I briefly consider whether family law is different, and I review the CBA recommendations. I suggest that the CBA recommendations fall short of articulating a unique standard for family lawyers and why one is necessary.[1]
The CBA recommended change because they suggest the Model Code does not “accurately reflect the contemporary duties and practices of Canadian family law lawyers” (p. 1). The CBA sought to bring the Model Code into alignment with the federal Divorce Act, RSC 1985 c 3 (2nd Supp), Canada’s ratification of the United Nations Convention on the Rights of the Child (“UNCRC”) and the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”), as well as existing family law “practice guidelines” (p. 1-2).
In addition to the two amendments discussed further below, the CBA also requested “guidance in the Model Code on the duties of family lawyers when representing clients affected by family violence” (p. 5). As a result of the 2021 amendments to the Divorce Act, lawyers are now required to “identify and respond to family violence”, to “ask their clients about family violence”, and to “discuss the impact of violence on [their client’s] children” (p. 4). However, the CBA did not make any recommendations for whether a lawyer’s role should change when there is family violence. While their question is obviously important, their amendments seem to have been recommended without consideration for how they may change once the family violence question is answered. Any changes to lawyers’ professional responsibilities ought to be viewed through the lens of family violence first, in order to prevent any unintended consequences for victims of violence.
Rule 5.1 governs the lawyer’s role in adversarial proceedings, including by requiring lawyers to “raise fearlessly every issue, advance every argument and ask every question, however distasteful, that the lawyer thinks will help the client’s case and to endeavour to obtain for the client the benefit of every remedy and defence authorize by the law.” The section does “not distinguish” consensual dispute resolution processes, nor does the Model Code include non-adversarial advocacy (p. 9). Per the CBA, the “practice of family law has evolved such that family law lawyers advocate on behalf of their clients in non-adversarial processes such as negotiation, mediation and collaborative process, as well as judge-led dispute resolution” (p. 10). The Divorce Act also imposes duties on lawyers to encourage their clients to “attempt to resolve” their dispute through a “family dispute resolution process” where “appropriate” (s. 7.7(2)); and a duty on parties to “protect” their child from “conflict arising from the proceeding” (s. 7.2). The CBA suggests that a lawyer’s duties under the Divorce Act are “in contrast with the role described under Rule 5.1-1” (p. 10). As a result, they propose adding a section to the Model Code for non-adversarial advocacy (p. 10-11). To be clear, the proposal is for a section specifically for “non-adversarial family law proceedings” not non-adversarial proceedings generally. It is unclear why the CBA amendment would be designed specifically for family law when all consensual dispute resolution processes have the same interest-based characteristics.
Rule 2 is the integrity rule, setting out the duty imposed on lawyers to practice “honourably and with integrity.” The CBA suggests that family lawyers “play a unique role when assisting in the resolution of family law disputes” (p. 10). In addition to traditional legal advice, the family lawyer has “broader responsibilities to understand the emotional, social, safety and financial consequences of the breakdown in a relationship and its critical impact on the next generation” (p. 10). They suggest adding “mandatory guidelines” to the integrity rule in order to “protect the public interest” (p. 10). The guidelines would include requirements to be “courteous and civil”, to remain “objective” and not “be influenced by ill feelings and emotional factors that hinder a reasonable resolution”, to avoid “delaying or bullying an opposing party”, and to encourage “clients to reduce conflict” (p. 12). Several of the suggestions encourage lawyers to consider children’s interests and to remind the client to do so as well (p. 12-13). There is also an emphasis on lawyers educating themselves about family violence, the UNCRC, and the UNDRIP (p. 12-14).
None of the CBA recommendations directly conflict with the Model Code or existing professional obligations. Indeed, it could be argued that many of their recommendations are already reflected in the Model Code and the Divorce Act, they’re just recommending that they be clearly articulated which is not a bad thing. (E.g.: lawyers are already required to be courteous and civil.) Whereas other recommendations, such as reducing “conflict” and not participating in actions that are “misleading” or pursued for an “improper purpose” are vague about what they mean for the lawyer’s role, especially in the context of negotiations and/or family violence. (See my previous columns here and here.)
These are not new ideas. In 2005, the British Columbia Justice Review Task Force (“BCJRT”) recommended that the “Law Society, CBA, mediators, and practitioners … consider the benefits of a unique code of practice designed specifically to address family law issues” (p. 5). They suggested that if lawyers are going to actually shift focus on “legal rights and obligations towards solutions that address the spectrum of family issues, they need to be supported by the Law Society and its rules, and by the legal profession’s governing statute” (p. 106). The Law Society of British Columbia (“LSBC”) followed that recommendation and is the only Canadian law society to have created voluntary guidelines for family law. Importantly, the BCJRT also recommended that “guidance should be given to family lawyers about how to balance their role as advocate with the potential harm it may cause to the family, and especially to children” (106). That question has not been answered.
Academics and practitioners have also recommended a separate code of conduct for family lawyers. Nicholas Bala, Patricia Hebert, and Rachel Birnbaum argued that professional organizations should “develop professional guidelines” with an emphasis on child-centric lawyering (588). John-Paul Boyd recommended a separate code of conduct that supports a more conciliatory approach than what the Model Code conceptualizes (here and here.) I have also recommended changes to the Model Code to accommodate family law, including a section for non-adversarial advocacy that would apply to all lawyers (here).
There are obvious benefits to clearly articulating existing professional obligations for family lawyers, and there are questions around the best way to do that (i.e.: embedding the guidance in the Model Code or issuing separate ethics opinions). The question is, is family law the same as other areas of law, such that clients should be treated the same way (i.e.: equal treatment by the profession)? Or is family law different than other areas of law, such that its unique characteristics require that family lawyers have different professional obligations?
Family law is often framed as different or unique by policy makers. For example, in 2013, the Action Committee on Access to Justice in Civil and Family Matters framed family law as “unique”, differing from other forms of civil disputes because of the heightened emotionality and “value driven” nature, the fact that relationships between the parties are “ongoing”, the “future-oriented” nature of the issues (not evaluating past-actions), “children’s interests are at stake”, and parties are “vulnerable”, and not repeat players (p. 15-17). These differences underpinned their recommendations for family law reform including greater focus on consensual dispute resolution. The BCJRT cited similar reasons, and suggested the difference means the judge’s role is different too. They suggested that judges ought to have expertise in areas that fall beyond the scope of “traditional legal training” such as “family dynamics, child development, gender bias, substance abuse, sexual abuse [and] family violence” (p. 102). (See my previous column with Jennifer Koshan on judicial education here.)
The Supreme Court of Canada has also suggested that family law is different; but there are open questions about what the family lawyer’s role is, and whether the law, including the law governing lawyers, ought to be applied differently. The first time the Court seems to have acknowledged difference in family relationships, in comparison to civil or commercial relationships, was in Pettkus v Becker, [1980] 2 SCR 834. Justice Dickson distinguished common law relationships from “an economic partnership … a mere business relationship, [and] a casual encounter” (850). Since then, family law’s “holistic approach” (Michel v Graydon, 2020 SCC 24 at para 100) has led the Court to consider factors such as the tension between state responsibility and private responsibility for economic vulnerability following relationship breakdown (e.g.: Messier v Delage, [1983] 2 SCR 401; Pelech v Pelech, [1987] 1 SCR 801), the feminization of poverty (e.g.: Moge v Moge, [1992] 3 SCR 813; Michel), and the vulnerability of children and concern over the impact of family conflict on them (e.g.: Young v Young, [1993] 4 SCR 3; Michel). Most recently, in Association de médiation familiale du Québec v Bouvier, 2021 SCC 54, in a concurring opinion, Justice Karakatsanis observed that the demise of an intimate relationship “may be a catastrophic event in the lives of participants” (para 145), and “efforts to reduce the collateral harm flowing from family separations have broad societal implications beyond the effects on the separating couple, particularly for children” (para 136). These decisions do not discuss what considering the unique relationship, the social framework, or the economic implications means for the lawyer’s role. There are questions about whether lawyers should be concerned about them, including the impact of conflict on children and the “collateral harm” from a relationship breakdown.
The Court has been fairly consistent that family law negotiations are “conducted in a unique environment”, in a “unique legal context”, and during a time of “intense personal and emotional turmoil” (Miglin v Miglin, 2003 SCC 24, paras 74 & 82). As a result, strict contract law principles do not apply. The legal framework informing the negotiation of separation agreements and the final terms must be considered within the unique context of relationship breakdown (Rick v Brandsema, 2009 SCC 10; LMP v LS, 2011 SCC 64; Miglin). Questions have also been raised by the Court about what (if any) the presence of counsel means for counter-balancing vulnerability during negotiations, and ensuring the terms of agreements are reflective of the governing legislation (Hartshorne v Hartshorne, 2004 SCC 22; Miglin; Rick; Bouvier). But there is no clarity about what, exactly, these differences mean for the lawyer’s role, and thus their professional obligations.
Beyond the contextual and social factors, difference has a direct connection to the application of the law, often in comparison to how the law would be applied in the civil or commercial context. Recently, the Court has been divided over whether evidence law ought to be applied more flexibly when a child’s welfare is considered (Barendregt v Grebliunas, 2022 SCC 22); and whether family mediation is different than civil mediation, informing the application of the exception to settlement privilege (Bouvier). In both of those cases the majority acknowledged unique features of family law but refused to clearly distinguish it. In both cases there were strong separate opinions that emphasized that family law is different and therefore the law should be applied differently. The Court has not considered whether the law governing lawyers ought to be applied differently.
Perhaps I am biased because family law is already othered by the academy and profession, such that I fear what further distinguishing family law would mean for the profession and family law clients. With that caveat, I suggest that unless the profession wants to change something about the way family lawyers practice, such as prioritizing a child’s interests over that of the client, or imposing a duty on a lawyer to consider the interests of the opposing party where there is family violence, then it seems to me that it is unnecessary to have different rules for family lawyers. In other words, unless the profession and legislature want to alter the existing legal framework governing lawyers, then providing guidance that does not actually impose additional or different duties does not seem helpful. To be clear, articulating specific obligations is helpful insofar as they serve to clarify and educate; but to really effect change we need answers to the big questions. Until we have answers as to what exactly the family lawyer’s role ought to be, in my view, changes to the Model Code ought to make sense for all lawyers, not just family lawyers.
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[1] I am grateful for comments on an earlier draft from Shelley Kierstead and Amy Salyzyn.
