HELP Toolkit: Identifying and Responding to Family Violence for Family Law Legal Advisers – HELP Guide

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HELP Guide – How to Have a Discussion about Family Violence^{Endnote 1}

Learning about your client’s experience of family violence is crucial to informing the legal advice and recommendations you give them. The approach set out in this Guide is designed to help you get the information you will need for your file, and is intended to be incorporated within your existing practices.

While each case is different, the overall approach should involve the same four components (“HELP”):

It is generally recommended that you discuss family violence at your first client meeting and that you continue to apply the HELP approach below at subsequent meetings. As you build rapport and trust with your client, they may be more willing and able to discuss their experiences of family violence with you. In addition, family violence is dynamic and can change over time. Therefore, it is important to check in with clients over the course of a case.

Your ability to explore issues of family violence with your client in a given meeting will be impacted by the complexity of the family law file, the realities of costs and time, and your client’s readiness to engage in discussions. Again, the HELP approach is meant to be flexible. However, it is important to remember that what you learn about your client’s experiences of family violence has the potential to impact many aspects of the family law case.

Tips for safe and effective discussions

Below you will find a few important tips to help you discuss family violence with your client in a way that is safe, sensitive and effective. In addition, Tab #6: Tips for Discussions with Your Client provides additional tips, including how to have discussions through email and other virtual communications.

• Understand the impacts of trauma: Trauma is both the experience of and a response to an overwhelming negative event or experience. Clients who have experienced trauma from family violence or other events may not react or interact in ways you might expect. See Tab #2: The Impacts of Trauma and Trauma- and Violence-Informed Practice.
• Understand the effect of people’s overlapping identities and experiences: Your clients will have multiple and diverse demographic characteristics^{Footnote i} that intersect to shape their perspectives, ideologies and experiences.^{Endnote 2} These do not exist in isolation from each other. They can compound a victim’s experience of family violence and their sensitivity to perceived judgments and assumptions about their credibility. It is also important to be aware of your own biases and assumptions. See Tab #7: How to Incorporate Cultural Safety into Client Interactions.
• Understand the gendered nature of family violence: All members of a family can be victims of family violence, but there are gender differences. For example, women account for the vast majority of victims of police-reported IPV, including intimate partner homicide. In addition, some populations, such as Indigenous women and women with disabilities, are more at risk of IPV than others.^{Endnote 3} See Tab #8: Prevalence of Intimate Partner Violence.
• Do not assume that a client has only experienced or only committed family violence. Family violence can be perpetrated by one person or more than one person in a family.
• Know that you may not get an answer. Some clients may not want to talk about very personal and sensitive topics at the first meeting or at all. Respect the client’s autonomy.
• Ensure that you leave sufficient time. Discussing family violence may take considerable time and be distressing for the client, and should not be rushed.
• Understand both your duties and your client’s duties under the child protection legislation in your particular jurisdiction, along with your professional and legal obligations.

“H”: Have an initial discussion about family violence

Initiating a discussion about family violence can happen in different ways. For example:

• A client may come to you specifically about a family law issue relating to family violence.
• Through the course of your meeting(s) with a client, you might become aware of possible family violence indicators. You can ask about these indicators as an opening to a discussion about family violence.
• You can introduce the topic of family violence by explaining what it is and then asking if the client has experienced it.

Regardless of how you initiate the discussion about family violence, remember to follow your client’s lead. Tailor your approach to your individual client’s particular situation.

Initial meetings with clients may not allow for sufficient time for an in-depth discussion of family violence, and your client might not be ready to disclose. Developing trust with your clients is key. Beyond that, the “H” part of the approach is about gathering enough information to allow you to identify any indicators of family violence or disclosures your clients are ready to make so you can better address immediate risk and safety concerns. Talking about family violence is a process that will unfold over several meetings with your client.

H.1 If your client discloses family violence at the outset

Some clients may disclose their experiences to you at the outset of your initial meeting or to staff in your office when they make an appointment. These clients may have already written down their experiences or identified evidence of the abusive behaviours, or your staff may have taken notes. You can still follow the HELP approach, using the information you have as a starting point for the discussion.

H.2 If not, how to start: Ask general questions about the family relationships

Often your clients will not immediately disclose their experiences, and you will need to introduce the topic of family violence. It is usually a good idea to start the discussion by asking generally about the family relationships. For example:

• “Tell me about how things are between you and your ex-partner.”
• “What challenges are you experiencing in this relationship?”
• “How are the children?”
• “Can you tell me a bit about the relationships each of you has with the children?”
• “Who decided to initiate the separation?”
• “How did you feel about the way decisions were made when you were together?”

H.3 If you become aware of potential indicators of family violence

You might become aware of possible indicators of family violence when asking about other topics, such as how the couple made decisions about their children or managed the household’s finances.

A client may reveal information that suggests coercive control by the ex-partner, for example not letting the client see family or friends, not giving them access to their own bank account or preventing them from practising their religion. This information can serve as a starting point for a discussion about family violence.

Other possible indicators of family violence that victims might display or describe include things, such as:

• visible signs of injuries, including to the head, face, mouth, teeth, neck, wrists, knees or feet (at various stages of healing);
• reduced physical and/or cognitive functioning or quality of health;
• hypervigilance, depression and/or anxiety disorders;
• problematic substance use, either by the client or by the ex-partner;
• appearing to be fearful when their partner or ex-partner is mentioned; and/or
• involvement of police and/or child protection.

See Tab #9: Asking about Specific Forms of Family Violence for additional indicators of family violence.

Interpreting indicators of family violence can be challenging, as your client may present some indicators without ever having experienced abuse. For example, if a client with a disability presents potential indicators of family violence, it may be difficult to discern whether these indicators are linked to abuse, experiences of devaluation or the disability itself.^{Endnote 4}

If you identify possible indicators of family violence, you may wish to use this as an opening to ask about family violence. Start with asking about the behaviour. For example:

• “You mentioned that your ex-partner is using alcohol more often. Can you tell me about that?”
• “You told me that you have no access to bank accounts and have no idea of the state of the family’s finances. Can you tell me more about that?”
• “You mentioned that your ex-partner does not let you see your family and friends. Can you tell me more about that?”

If the responses to these questions uncover possible indicators of family violence, you can introduce more direct questioning with the following:

• “Sometimes this can be associated with other problems happening in the family, such as you or someone else being harmed physically or emotionally. This is a very important issue that I discuss with all my clients, as it helps me understand your situation and make appropriate recommendations for you and your family. Would it be okay if I asked you some more questions about this now?”

H.4 Asking directly about family violence

There are many different ways to introduce the topic of family violence. For example, you could acknowledge that it is a difficult topic, but one that you talk to all your clients about.

• “I would like to talk about family violence. This is something I go through with all my clients to make sure I know about their situation and give the best advice I can. Some people find talking about these issues difficult, but information about safety is really important in family law matters.”

To help your client understand what you mean by “family violence,” you may want to offer them a definition, such as the one set out in the Divorce Act. For example:

• “I find it useful to refer to the definition of family violence in Canada’s Divorce Act to explain what I mean when I talk about safety and family violence.

  Canada’s Divorce Act says that family violence is behaviour that

  • is violent;
  • is threatening;
  • makes a person fearful about their safety or someone else’s; or
  • is a pattern of coercive and controlling behaviour – one person trying to control another over a period of time.

  Family violence includes many different types of behaviours and experiences. It is not only physical violence or abuse, but also other types, including psychological, sexual and financial abuse, harassment and stalking. It can also include threats to harm or kill a person or an animal, such as a family pet.

  To help me better understand your situation, I would like to ask you some questions about family violence. If you want to take some time to think about this, we can come back to these questions later in this meeting or we can discuss this another day.”

If your client indicates a willingness to proceed with talking about family violence and there is sufficient time left in your meeting to allow for this discussion, you can ask some initial questions to begin to identify whether family violence is a concern. It can be helpful to provide examples of behaviour, as they may not recognize their experiences as abusive. If your client indicates that they have experienced behaviour that might be family violence, ask them to describe it to you. The following are examples of some initial questions you could ask:^{Endnote 5}

• “Have you ever felt afraid of your ex-partner because of something they have said or done to you or to someone else? (If yes, can you give an example?)”
• “Family violence can involve physical violence, such as choking, hitting, kicking, punching or slapping. Have you experienced any of this in your relationship with your ex-partner?”
• “Violence might also be threatened, such as a threat to hurt or kill someone, to take away someone’s children or to hurt a family pet. Has your ex-partner ever threatened you in any way? (If yes, can you give an example?)”
• “Does your ex-partner control how much money you have, tell you what you can spend money on or make all the decisions about money for your family?”
• “Sometimes a person constantly says things that makes another person feel bad about themselves, such as insulting them or calling them stupid, lazy or ugly. Have you experienced that in your relationship?”
• “Children can also be victims of family violence. Has your ex-partner ever hurt your child(ren) or have you ever been concerned about their safety?”

See Tab #9: Asking about Specific Forms of Family Violence for some more specific questions you could ask if there is time at this initial meeting or for future meetings.

Give the client time to think and allow plenty of time for responses; this may result in some awkward silences. Remember that this may be the first time that anyone has asked your client these questions.

H.5 When family violence is suspected but not disclosed

If you suspect your client or their children may have experienced family violence, but they do not disclose it to you, it is important to respect your client’s autonomy. Recognize that there are many reasons why a client may not disclose their experiences to you. See Tab #1: Reasons Why Your Client Might Not Disclose Experiences of Family Violence. Remember to check in with your clients about family violence in subsequent meetings, as they may be ready to disclose once trust and rapport increase. In addition, it is a good practice to ask about risk and safety concerns regardless of whether the client has disclosed family violence. See HELP Guide Section E.

H.6 Responding to a disclosure

It is important to demonstrate that you are open to having your clients show distress, for example through crying. This can be done for example by:

• sitting quietly and showing your concern by asking them if they would like a glass of water;
• offering tissues if it seems the client will need them; and/or
• recognizing that this is an emotional and stressful time, and reassuring them that it is okay to take their time, take a few breaths, or take a break.

If the client was accompanied by a support person, you can offer to step out and have the support person join them from the waiting room. If the client is too distraught to continue, you can speak with them about available supports and suggest rescheduling for another time. Be aware that despite having made a disclosure, your client may still not be ready to share specific details about their experiences.

Respond to the client’s trust in you and willingness to talk about these difficult issues with gratitude and non-judgment. While you can denounce the behaviours, avoid vilifying the other party. Thank the client for sharing information with you, validate how they are feeling and assure them they are not at fault.

• “I appreciate the courage it took for you to tell me about your experiences.”
• “Thank you for sharing this information with me today. This is an important topic to address for your case.”

Do not promise them everything will be OK, but help them to understand that they can take steps to get help including to protect them and their children. For example:

• “If it is okay with you, I would like to come back to this the next time we meet. For today, I want to make sure that we discuss your safety and supports that may be helpful.”

“E”: Explore immediate risks and safety concerns

When a client makes contact with a family law legal adviser, this can increase their risk of violence or of escalating violence. As there are many reasons why a client might not initially disclose their family violence experiences to you, it is a good idea to ask about safety regardless of whether they have disclosed anything. Discuss safety implications of potential legal and non-legal actions with the client.

E.1 Be attuned to factors that can indicate increased risk for continued violence or lethal violence

While not all family violence or family homicides can be predicted, some risk factors have been consistently identified in homicide reviews and research. The following indicators can indicate the presence of immediate heightened risk.^{Endnote 6}

Be aware that a victim’s risk is compounded when several of the above risk factors are present in their case. Note that strangulation or choking is strongly associated with domestic homicide.

E.2 Ask about risk and safety

While legal advisers are not trained to do actual risk assessments^{Footnote ii}, it is good practice to ask some general questions about your client’s risk and safety to know whether it might be appropriate to refer them to services that may help them stay safe.

Below are some sample questions that can be integrated into your discussion with the client, but they should not be asked as a checklist.^{Endnote 7} Remember to keep the risk factors in mind when asking your client about their safety and risk.

• Regardless of whether there has been a disclosure:
  • “Do you feel safe to leave my office?”
  • “Does your ex-partner know you are here?”
  • “Would you like someone to walk you to your car?”
• Questions about the ex-partner’s state and potential triggers:
  • “Does your ex-partner use alcohol or drugs in a way that is problematic? If so, have you noticed that the abusive behaviours increase when they are drinking or using drugs?”
  • “Has your ex-partner threatened self-harm or attempted to commit suicide?”
  • “Does your ex-partner have access to weapons, particularly guns?”
• If violence has been disclosed: “Has anything about the violence changed lately? Has it become worse? If so, how?”

E.3 Address immediate danger

If the client responds “yes” to any questions about immediate risk and safety concerns, consider these important follow-up actions:

1. Explore with them whether they have a plan for their safety before they leave your office.

Encourage your client to seek specialized help in assessing their level of danger. They may want to reach out to family violence services, such as a frontline advocate or victim services.

These services have experience in helping victims in crisis and can support your client to address safety concerns. See Tab #10: Safety Planning.

2. Sometimes, it is appropriate for your client to call child protection and/or the police.

It may be helpful for your client to talk to you, another legal adviser or an advocate to understand the complexities around involvement of police or child protection services. See Legal Response Guide LR.4.2 and Tab #11: What Clients Need to Know about Contacting the Police.

3. You may want to discuss the option of seeking a Protection/Restraining Order.

See the Legal Response Guide LR.1.3.

4. Discuss safe ways to contact your client.

• When you first ask about communication preferences, a client may not recognize potential risks, for example related to leaving phone messages. It is important to highlight this issue and determine how to safely contact the client:
  • To which address can you send emails safely?
  • At what number can you leave phone messages without the risk that the abuser will hear them?
  • Is there a safe address to which you can send regular mail?
  • What should the protocol be when video or phone calls drop or when the client abruptly hangs up?
• Ask whether the ex-partner could access the information. Does the client share an email address/telephone number/passwords with the ex-partner? Do they use an email or cell phone password that the ex-partner could easily guess? Do children know how to access the client’s email or cell phone?
• Consider whether it is safe to give the client a business card or other documents to take away from the first appointment. Is there a risk that these documents could be found by the ex-partner? Is there a safe place for the client to store the documents?
• Abusers may use technology to track a client, such as GPS devices in cars or spyware on phones and computers. See Tab #10: Safety Planning for a list of technology safety planning resources.

5. Clearly flag files with limits on how you can communicate with your client.

It is a good practice to create a communications form, outlining the client’s preferences for safe communication. This form will help office staff avoid accidental communications that the ex-partner can access (e.g., a bill sent via mail, when the client has said no mail should be sent).

E.4 Making referrals

If you suspect family violence or it is disclosed, you should gather some information to determine what types of immediate support your client may need. For example, you may want to ask your client if they or their children have any immediate needs such as a safe place to stay.

Once you have a better sense of your client’s situation, you can suggest how they can get the assistance they require. Key services for immediate safety and advocacy may include:

• emergency shelters/transition houses;
• victim services;
• advocacy services, which offer safety planning and legal, housing or financial advice, and can facilitate access to community resources;
• sexual assault centres;
• organizations that provide services for men experiencing or perpetrating violence;
• other family violence services or counselling services; and
• other community-based services (e.g., Indigenous services, ethno-racial agencies, 2SLGBTQ+ supports).

Be sensitive to the fact that your client’s needs may be different depending on their backgrounds (e.g., gender, ethnocultural origins). You may also have to consider other needs for your client, such as costs, transportation, language, accessibility, and access to childcare. It is important to avoid making any assumptions about your clients based on their background; ask your clients for their preference regarding referrals to services. See Tab #12: Making Referrals.

E.5 If your client goes back to their ex-partner

Many victims of family violence try to terminate their relationship with their abuser more than once. Some will return several times.^{Endnote 8} The reasons for these returns are numerous and will vary (e.g., ex-partner’s expressions of remorse, continued emotional attachment to the relationship, economic need, fear of losing the children, fear of retaliation).

Or, your client may not have yet left their abusive relationship.

For these clients, it will be important to refer them to community-based services and other resources that can help with safety planning.

“L”: Learn more about the family violence to help you determine what to recommend to your client

Gathering details about your client’s experience of family violence will help you to determine what types of family law processes and remedies would be safe and appropriate. It is likely that in most cases you will need to gather this information over several meetings due to time constraints, a client’s level of comfort, and/or their ability to get into details. Remember, you should revisit the issue of family violence throughout the family law case, regardless of whether there was a disclosure in the initial meeting.

When clients have disclosed family violence, you can explain why gathering more detailed information is important. For example:

• “You know how we talked about family violence during our last meeting? I have a few more questions to ask you if that is okay. These questions will help me to understand what legal options might be most appropriate for us to consider.”

Tab #9: Asking about Specific Forms of Family Violence provides examples of questions you might ask for each of these different forms of family violence, including:

• physical abuse;
• sexual abuse;
• threats;
• psychological (or emotional) abuse;
• financial abuse (e.g., controlling the client’s finances, controlling how they spend money);
• harassment and stalking;
• coercive controlling violence;
• failure to provide the necessaries of life;
• violence directed at children; and
• children’s exposure to violence.

When asking about different forms of family violence, you should gather information about the seriousness, frequency, duration and impacts of family violence; this will affect the advice you give. It is also important to look for patterns of behaviour, particularly coercive controlling behaviour.

After asking about different forms of family violence based on the information your client has provided, it is important to ask the client whether they have been harmed by their ex-partner in any other ways that you have not asked them about. For example:

• “We have gone through a lot of questions together. Please tell me about any other ways in which you have been frightened, threatened or hurt by your ex-partner that we haven’t discussed.”
• “Are there any ways in which your children may have been frightened, threatened or hurt by your ex-partner that we haven’t discussed?”

It may also be important to ask about family violence that is perpetrated by extended family members. For example, you should consider whether:

• other family members engaged in abuse against your client; or
• the ex-partner is likely to engage other family members to harass, stalk or otherwise abuse your client, including through the family law case.

In the course of your discussions about family violence, your client may disclose that they have engaged in abusive behaviours. See Tab #4: Representing a Client Who May Have Engaged in Family Violence.

“P”: Promote safety throughout the family law case

Family violence can be unpredictable and risks may continue, increase or change throughout the family law case. It is important to check in with clients about their immediate risk and safety concerns, and continue to watch for signs of violence. For example, if you do not hear from a client who normally responds rapidly to your emails, you may want to check in with them. It is also important to plan for times of increased risk.

P.1 Check in with clients about safety and family violence

As previously noted, it is a good practice to check in with your clients over the course of the case about safety concerns and the potential escalation of any violence. They may be experiencing new or more serious forms of family violence, or they may be ready to talk about things that happened in the past.

Checking in with your clients does not need to be a long process. By asking a few questions, you may be able to uncover information from your client that is relevant. For example:

• “How are you doing? How are your children?”
• “Have you had any contact with your ex-partner since we last spoke? How did that go?”
• “Do you have any concerns about your safety or the safety of your children?”

P.2 Risks relating to the family law process

Separation is a time of heightened risk for family violence, including potentially lethal violence. In addition, involvement with legal advisers and the family law process itself can increase risk.

For example:

• Contacting or serving an abusive ex-partner with court documents may increase the risk of family violence; they may see such activity as a challenge to their power and control.
• It is not uncommon for an abusive ex-partner to escalate harassment of their ex-partner in the days leading up to a court appearance or a mediation session to pressure them to concede.
• The victim and abuser may come into direct contact with one another through the family law case, for example at the courthouse or in mediation waiting areas.
• Outcomes in court, mediation or negotiations that are contrary to an abuser’s wishes or objectives may also increase the risk of retaliation or punishment. This can come in the form of increased aggression, intimidation or violence.

You can work with your client to understand and reduce risks in relation to the family law process. In addition, you may want to encourage them to reach out to community supports to develop a safety plan. See Tab #10: Safety Planning.

P.3 Safety planning for you and your office staff

When thinking about immediate risk and safety concerns for your client, also consider the same for yourself and others in your office.

The following considerations can help you evaluate your risk and the risk to your staff:^{Endnote 9}

• Does the other party know that your client has a legal adviser or has started a legal proceeding?
• Does the other party have legal representation? If so, ask the other party to communicate with you and your staff only through their legal adviser. If they are self-represented, ask them to communicate in writing only.

Do you have a safety plan in place for you and your staff that addresses safety at the office, at home and at other locations, such as the courthouse?

Additional good practices include:

• Encouraging your office staff to take some family violence training so they understand the clients you may be dealing with and the importance of safety;
• Not revealing your personal information or that of your staff, where possible; and
• Increasing your privacy settings and/or using a different name for your personal social media accounts.

P.4 Taking care of yourself

When a legal adviser works with clients who have experienced trauma as a result of family violence, the trauma can have an impact on the legal adviser too.

The impact of exposure to this trauma is cumulative and can manifest in different ways. Some negative coping strategies that you should be aware of include:

• cynicism;
• anxiety;
• a sense of hopelessness; or
• unhealthy substance use.^{Endnote 10}

Be aware of how your cases involving family violence may affect you. It may be helpful to:

• have a safe place or an activity (e.g. exercise) to decompress;
• discuss things with a trusted colleague or someone outside of the workplace while still respecting your clients’ confidentiality; or
• seek professional assistance.

Below are a few online resources that you may find helpful.

Canadian Bar Association:

• Compassion fatigue in the legal profession? (n.d.): https://www.cba.org/Publications-Resources/CBA-Practice-Link/Work-Life-Balance/Health-Wellness/Compassion-Fatigue-in-the-Legal-Profession
• Things you didn’t learn in law school: Dealing with vicarious trauma and other issues (2019): https://www.cba.org/News-Media/News/2019/March/trauma-and-other-issues

Canadian Lawyer Magazine:

• How compassion fatigue affects lawyers and what they can do about it (2021): https://www.canadianlawyermag.com/news/features/how-compassion-fatigue-affects-lawyers-and-what-they-can-do-about-it/354883
• Vicarious trauma: the cumulative effects of caring (2015): https://www.canadianlawyermag.com/news/general/vicarious-trauma-the-cumulative-effects-of-caring/269679

For information about the wellness resources available to you, please contact your law society or bar association.

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