Law societies in Canada establish rules of conduct for members of the legal profession, based on the Federation of Law Societies’ Model Code of Professional Conduct, to ensure they adhere to strict standards of professionalism. The Model Code is updated as needed, to reflect changes in legal practices and ethics.
In recognition of the evolution of Canadian family law practice and ethics and professionalism, as well as changes in the law related to divorce in Canada, the Family Law and Child and Youth Law Sections and the Ethics and Professional Responsibility Subcommittee propose two amendments to the Federation of Law Societies’ Model Code of Professional Conduct: the addition of a new commentary on non-adversarial family law proceedings and the addition of a new rule to consolidate standards for family law lawyers.
Both changes, the CBA Sections say, are proposed in an effort to align the Model Code with contemporary duties and practices of Canadian family law lawyers including recent amendments to the Divorce Act, and Canada’s ratification of the United Nations Convention on the Rights of the Child and the United Nations Declaration on the Rights of Indigenous Peoples.
Non-adversarial family law
Over the last two decades, Canadian family law lawyers have come to adopt non-adversarial approaches to family law, and promoted negotiation, mediation and collaborative laws instead of adversarial approaches that are inadequate for many families. Similarly, judges who preside over family law proceedings are more likely now to engage in case management and judge-led dispute resolutions than they were in the past.
The amendments proposed seek to reflect this shift towards non-adversarial methods and embed them in the Model Code.
The Sections say the Federation might want to take this a step further and overhaul the language and framework of the Code to remove the terms “adversarial” and “non-adversarial” altogether, given that they are not used in family laws.
Standards for family law lawyers
“In addition to traditional tasks related to advising clients of their legal rights and obligations,” the Sections write, “family law lawyers have 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.” This should be acknowledged in the Model Code, to protect the public interest.
These standards should reflect contemporary practice and include an appreciation of the impact of family violence, the rights of children and youth, Indigenous rights and intercultural competency.
In particular, the Sections say, family law lawyers need to be informed of the legacy of Indian Residential Schools and use their work to promote the human rights of Indigenous peoples. Lawyers also need to understand and appreciate diversity in order to make recommendations that are consistent with their clients’ experience.
Because family breakdown has far-reaching consequences, it is crucial for family law lawyers to understand the impact of diverse characteristics. The Sections propose that direction be added to the Model Code for family law lawyers (and ideally all lawyers) “to undertake skills-based training in intercultural competency recognizing the diversity of people who live in Canada, conflict resolution, human rights and anti-racism,” the Sections write.