Lawyer’s Fiduciary Duty to Screen for Family Violence: A Summary

November is Alberta Family Violence Prevention Month!

Did you know that lawyers are required to screen for family violence?

Though not explicitly provided, the obligation to screen for family violence has been raised in the context of the amended Divorce Act, RSC 1985 c 3 (2nd Supp), (the “Divorce Act”) and, specifically, section 7.3, which suggests parties should attempt to resolve matters through alternate family dispute resolution processes where appropriate and available. Furthermore, s 16 of the Divorce Act requires the Court to consider family violence as a factor when determining the best interests of the child.

Section 7.3 of the Divorce Act and the resolution of issues outside of the court was further discussed in Colucci v Colucci, 2021 SCC 24, (“Colucci”), wherein the Supreme Court of Canada stated that:

[69]…Parents should be encourage – absent family violence or significant power imbalances – to resolve their disputes themselves outside the court structure and legal rules should be clear and accessible so they may reach fair agreements.”

Drawing attention to the potential of family violence or imbalances in power, the Court infers that it would not be appropriate to refer or encourage parents to pursue alternate dispute resolution processes if there are those concerns.

Ultimately, lawyers have a fiduciary duty to ensure that clients feel safe and are able to negotiate a fair settlement.

Risk assessments for family violence should be done at the commencement of a file. Risk assessment / family violence screening tools are linked below for your use:

If you or someone you know is experiencing family violence or abuse, please visit the Government of Alberta website for information and resources – https://www.alberta.ca/family-violence-find-supports.aspx

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