Law Times

Law Times • may 1, 2017 Page 7 www.lawtimesnews.com The life of a family lawyer BY DORON GOLD A ttack. Destroy. Emotional bag- gage. War. These are just a few of the descriptive words I heard ut- tered while attending sessions during the County of Carleton Law Association's Annual Institute of Family Law in Mon- tebello, Que. recently. The room was filled with family prac- titioners comparing notes and listening to speakers discuss everything from the lat- est cases on custody and access to judges speaking on effective advocacy in Family Court. You simply don't hear such colour- ful words uttered at corporate counsel, real estate or even criminal law conferenc- es. I, in a previous life, practised as a family lawyer, and I found that absorbing all of these narratives was jarring. I came away reminded of how simultaneously reward- ing and distressing family practice can be. I write frequently in this space about the stresses of a legal career, and yet, it seems that family law holds a unique place in the conversation about lawyer stress. There are few family lawyers who, after having been asked what type of law they practise, tell the inquisitor that it's family law, only to be told, "I don't know how you do that, I could never do family law." And yet, for those who practise in the area, it can be the best kind of legal work. You can make a meaningful difference for individuals, protect children, preserve the legal rights of the vulnerable and help people rebuild tattered lives. The poten- tial fulfilment is boundless. So, why all the distress? Start with the subject matter. People who come to fam- ily lawyers are sorting through the wreck- age of what was once the most important aspect of their lives. They are enduring the end of the dream of lifelong love, companionship and/or co-parenting and they are of- ten hurt, scared and angry. It's emotionally charged stuff. Family lawyers must navi- gate not only legal rights and obligations but also emotion- al upheaval and psychological turmoil. And many family litigants want to adjudicate their pain through the litigation process, which is never a good strategy. This is es- pecially problematic when the best inter- ests of children are involved. It's an emo- tional minefield and successful family practitioners must learn to deftly manage client demands — which are sometimes unreasonable or counterproductive — and professional and sometimes even moral obligations. While working with these emotionally activated clients can be stressful, many family lawyers have taken on the unfortu- nate habit of adopting their clients' griev- ances as their own. Not a day passes in family court without at least one pair of legal advocates arguing over children with a fervour suggestive of people desperately fighting for their very own progeny. If I, as a psychotherapist, assimilated all of the various painful emotions and stories I hear from clients on a daily basis, I'd burn out in a week. And yet, many lawyers in this field actually think stepping into the emotional shoes of their clients makes them more effective. It doesn't. In the same vein, these warring, un- civil lawyers also lose sight of their professional obligations to each other as colleagues. Many of the judges at the Montebello conference re- counted their respective frus- trations with lawyers attack- ing each other in court, in cor- respondence or in behaviour throughout the litigation pro- cess. These judges uniformly lamented how distressing and ineffective this approach is in advocating for client in- terests. In addition, to be a lawyer feeling like you are incessantly under personal attack by colleagues is unmanageable. It takes on a personal dimension one does not find in other areas of law, including civil litigation. If you have to argue a sup- port motion on Monday morning against a particularly uncivil opposing counsel, your Sunday night sleep is unlikely to be restful and that's simply unhealthy. Add to this the increasing prevalence of self- represented litigants in Family Court, with their personal animus and ethical f lexibility, and you have a recipe for law- yer burnout. These are just a few of the myriad chal- lenges experienced by family practitio- ners. And yet, family law — when done right — can be the best of times. To carry this off, one needs to remain mindful of certain necessities. First, family lawyers must have personal and professional boundaries. From the first client meeting, expectations must be managed and delin- eated clearly. Clients need to know when they can and cannot contact you. They must have a clear sense of cost and bill- ing. They must be aware of reasonable ex- pectations as to legal outcomes. And the clients must be advised that you are there to help resolve a legal dispute, not grind their former partner into a fine powder. Further, you have a choice as to which cli- ents you take on and which you keep. If a client will not honour your boundaries, let them secure alternate counsel. It's not worth it to your psyche and to your pro- fessional reputation. Maintain a level of civility and pro- fessional decorum with everyone, from clients to opposing counsel to unrepre- sented litigants to court staff. And do this no matter how they treat you. This can be hard to do, but it pays dividends, both personally and professionally. It's good for your mental health, but you'll also realize that judges look favourably upon the law- yer that maintains ethics and respect. Finally, lean on supportive colleagues, friends and family. Some of the subject matter dealt with in Family Court is pain- ful and traumatic and even lawyers need space to debrief and process this emotion- al content. There is no shame in asking for help. It's emotionally intelligent and ulti- mately ensures a healthy and satisfying practice. If you love family law, do it the right way and you'll reap the benefits for years. LT uDoron Gold is a registered social worker who is also a former practising lawyer. He works with lawyers and law students in his role as a staff clinician and presenter with the Member Assistance Program as well as with members of the general public in his private psychotherapy practice. He's available at dorongold.com. Sexual assault processes need new options BY PATRICIA HUGHES D espite many changes to the Criminal Code sexual assault provisions and training of judges and other actors, the legal system still has challenges when it comes to sexual assault. The Criminal Code treats sexual assault as a sub- category of assault under s. 251, to emphasize that sexu- al assault is about violence, not sex. Generic and sexual assault each has three gradations, consent can be a de- fence for both and in both cases the law deems the com- plainant cannot consent under certain circumstances. (As a note, there remain some forms of sexual assault, such as against a person with a disability, included un- der Part V of the Code — Sexual Offences, Public Mor- als and Disorderly Conduct — suggesting that for some purposes sexual assault is still treated as a moral offence.) Yet, the Code also acknowledges that sexual assault is not like other forms of assault. The maximum penal- ties are higher for sexual assault. There are additional reasons why consent may not be available as a defence that ref lect the specific nature of how a sexual encounter might not be consensual. The Code also has provisions about the disclosure of records and the admissibility of evidence of the victim's prior sexual conduct that have no analogy for generic assault. The Code's "special" sexual assault provisions recog- nize that sexual assault is fundamentally different from generic assault, in part because of the myths and stereo- types that still infuse perceptions of women's sexual ac- tivity. (This also is true of domestic or intimate partner violence.) These are at the root of why the criminal jus- tice system does not appear to work for victims of sexual violence, since they are too often ref lected in police in- vestigations and factors judges consider in making their decisions, making women reluctant to bring allegations. In fact, police, prosecutors and judges have received training on how to deal with sexual assault cases, in- cluding how to treat the complainant. Nevertheless, there is general acknowledgement that more training is required. Recent media coverage makes it clear that police services require a better understanding of what happens to women who suffer sexual assault and has prompted police services to respond to that need. Sexual assault crisis centres, separate from the for- mal legal system, have existed for many years across the country as a crucial support for women (and now men) who have experienced sexual assault. Now new initiatives more closely aligned with the legal system it- self hold tentative promise for victims of sexual assault as they enter the legal process. If successful, they could help increase the number of victims willing to bring their allegations to the police. One is the pilot in Ontario to provide four hours of legal advice (not representation) for victims of sexual as- sault, although it is currently limited to Toronto, Ottawa and the District of Thunder Bay. In Toronto, the Barbra Schlifer Commemorative Clinic plays a major role. Of course, other crimes can result in trauma and difficulty for victims in dealing with the legal system. So why should victims of sexual assault have lawyers, if other victims do not? Because the myths and stereotypes about women and sexual activity affect women, too. Police must probe the victim's account, as for any crime, but their questioning, even if not intended, can seem to be an attack on the victim. Lawyers advising victims at the initial stage can ex- plain the importance of revealing all the circumstances of the situation, even if some aspects of those circum- stances seem self-incriminating. They can ask "the hard questions" so that the reason the police ask them will be clear, as well as indicate questions about which the victim should be concerned. The reality is that the hard questions will be asked by defence counsel at trial (perhaps legitimately as an attack on credibility), surprising prosecutors who haven't been given the full story. Prosecutors must know the worst so that they can prepare for it. The second initiative is the Victoria Sexual Assault Clinic in British Columbia, located in the same building as a sexual assault crisis centre. It brings together all ser- vices related to sexual assault, including examinations, support and counselling, as well as interviews by the police and by the Crown. It is hoped that for complain- ants the atmosphere is less confusing and undermining than the more traditional approach. It echoes a special sexual assault court for which Crowns and judges are specially trained, analogous to domestic violence courts in some jurisdictions. While not perfect, the criminal law on paper has responded to many of the problems that existed in the system previously. And training for those in the legal system who deal with sexual assault cases has made a difference. Media coverage indicates that some police investigators did satisfy the complainants that they were being treated seriously and were understood. There is more to be done on that front, however. It is only when women report sexual assaults that the crimi- nal justice system has a chance to do its job of making it clear that sexual assault is unacceptable. Lawyers as- signed to complainants and freestanding centres that bring together the various aspects of sexual assault investigations are options worth exploring further to raise reporting rates. LT uPatricia Hughes is the founding executive director of the Law Commission of Ontario (2007-2015) and former dean of law at the University of Calgary. u SPEAKER'S CORNER COMMENT The Lawyer Therapist Doron Gold

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