Title: McCarthy Tétrault LLP Lecture in Ethics & Professionalism - Intimate Partner Violence and the Fabrication Myth: Implications for Lawyers’ Ethics in Family Law. 

Date: Thursday January 16, 2025

Description: Deanne Sowter will explore family lawyers’ professional obligations concerning the fabrication myth—the notion that claims of intimate partner violence are fabricated to gain an advantage in family court. Referencing the recent British Columbia Court of Appeal decision in KMN v. SZM, Sowter argues that lawyers can no longer rely on the fabrication myth as a defensive strategy. However, she contends that professional obligations still permit space for stereotypical reasoning, which should be addressed through legal and regulatory reforms to enhance access to justice for survivors. 

Podcast:

Transcript: 

[Auto-generated transcript. Edits may have been applied for clarity.]
Okay, everyone, um, I think we're going to get started.

Some folks are still, uh, arriving. Um, I want to welcome everybody today, uh, both in person and online.

We've got about 100 folks online. So welcome to all of of you.

And thank you for joining us for the McCarthy Tetreault Lecture and Legal Ethics and Professionalism.

I just want to start by acknowledging that, uh,

we're meeting here today on the traditional lands of the Anishinaabe peoples in the hood and in a adjoining.

Uh, I'm really grateful to be able to learn here, uh, to raise my family here on these on this beautiful land.

Uh, and in making this acknowledgement, um, we acknowledge the very, um,

strong ties of indigenous peoples across Turtle Island to the lands, uh, economically, spiritually and culturally.

Um, so in terms of housekeeping, as I said, we have folks on zoom.

Welcome to you. We have folks in the room.

Uh, there is going to be a Q&A session, uh, after, uh, the main presentation, uh, for the folks in the room,

if you're able to come to the microphone, because otherwise our friends on zoom will not be able to hear you, uh, to our friends on zoom.

If you could type your questions into the chat and I will be, uh, I will relay it, uh, to, uh, to Diane.

So, um. We're also, uh, recording, uh, this session and we're going to put it up on our, uh, ever popular YouTube channel.

Uh, and, uh, so you can check it out later.

Uh, and on our on and on and a podcast, and you'll see that we have the beginnings of a mighty party to follow.

Uh, so there's a reception after the talk, and I invite you all to, uh, to join us.

And thank you very much to, uh, to Natalie, to Mel and the team, uh, for helping us, uh, put all of this together.

And thanks very much to our hosts to, um.

So today we're talking legal ethics.

And I know that all of you here will agree that, uh, legal ethics is more than just, uh, mandatory course that our students have to do.

Um, it's the very foundation of our identity as, uh, a legal, a legal profession.

And our purpose.

And I think this question of legal ethics in an era where, um, civil and political discourse is fractured by rampant, uh, spread of misinformation.

Growing distrust and an alarming inability to empathise with anybody.

Uh, I think the stakes are even higher and higher for ethical and professional behaviour in the legal profession.

And legal ethics are core principles that undermine the administration of justice.

That guide our self-regulation, a privilege that must never be taken for granted.

And they shape our fiduciary relationships and responsibilities to our clients.

They help us navigate conflicts of interest and compel us to act with integrity, with fairness and professionalism at all times.

And to me, in every action, we must uphold civility and a steadfast commitment to inclusiveness, not as abstract ideals,

but as essential practices in earning and maintaining the trust of not only our clients, our individual clients, but the public at large.

And, um, as educators and stewards of the next generation of legal professionals.

Uh, at Queen's Law, we carry that critical responsibility of instilling those values in our students.

And we must prepare them to meet the highest standards of ethical practice.

As I said, not just to succeed as individual practitioners,

and not only for you yourself to flourish, but to safeguard the very legitimacy of the profession.

And I don't think complacency is an option here.

Um, and I think the, the, uh, the worth of self regulation depends on our unrelenting commitment to those ideals.

So we're incredibly grateful to, uh, McCarthy Tetro, uh, for the generous support of this lecture and the vein of this topic since 2015.

Thank you very much. Um, and also, in addition to that, they fund a panel on legal ethics for our first year orientation.

They help fund course materials for some of our students in our legal ethics courses, and they help bring in other lecture lecturers as well.

And they fund a fellowship in legal ethics, the recipient of which, uh, is our speaker today, the and Salta.

So Diane is a doctoral student and a volunteer scholar at Osgoode.

Uh, and as I mentioned, she's the holder of the 20 2425 McCarthy Tetreault Fellowship in Professional Ethics here at Queen's Law.

As you see, her research focuses on legal ethics, family law, gender based violence, feminist legal theory, tort law, and evidence law.

Uh, she is studying legal ethics in relation to myths and stereotypes in family violence cases, and we are going to hear more about that today.

Uh, Dan has already made her mark and scholarship.

She's published, um, across, uh, many leading peer review journals.

And your work is being cited by the Supreme Court of Canada.

She's got a bunch of other fellowships not as good as the one we gave you, but she has some other ones.

So, you know, if you just add them all up. Uh, including the Honourable Willard, the SC Teaching Fellowship and the OBOR Foundation,

chief Justice of Ontario fellowship and legal Ethics and professionalism studies.

She was asked to and delivered the FB Wick Y Memorial Lecture and Professional

Professional Responsibility and Legal Ethics at the Schulich School of Law at Dalhousie,

and she's presented across Canada.

She's taught legal ethics, dispute resolution, and family law courses as an instructor at Calgary Law and an adjunct at Western Law.

And we're really lucky that she's here with us this year teaching advanced family law.

So, uh, if you can join me in welcoming Diane to give our annual lecture this year.

Thank you. Dean. And thank you so much, um, for the kind invitation, uh, for the fellowship.

And thank you to McCarthy, Tetro for the generous support of my work.

So I'm going to present a paper today called Intimate Partner Violence and the Fabrication Myth Implications for Lawyers, Ethics and Family Law.

So in the paper, I considered a recent, what I would call landmark decision from the British Columbia Court of Appeal.

Hey, I'm an SDM. So this is the first family law case from an appellate court to recognise the fabrication myth.

And by doing so, I suggest the decision not only provokes us to think about how lawyers create the narrative of their case,

but also the contextual complexities of the law in forming the boundaries on lawyers advocacy.

So in the paper, I'm trying to use legal ethics to understand lawyers professional obligations in IPV cases,

and in doing so to encourage lawyers to live up to those obligations.

So this paper is piece of a larger project,

one in which I'm also looking beyond ethics to family law and eventually evidence law and procedural rules to understand what

parameters could be created that are capable of protecting women and children from ongoing violence within the justice system.

Because, as you'll see today, what we currently have is inadequate.

There are gaps within the existing framework that lawyers can exploit,

and in doing so contribute to victims harms, including sometimes their re traumatisation.

So today I'm going to focus on a narrow aspect of the lawyer's role as an advocate and the use of the

fabrication myth as a defensive strategy in response to an allegation of family violence in a parenting case.

And by that I mean, when a victim of intimate partner violence,

or IPV alleges that their former spouse was abusive and the defensive reasoning put forward,

the flat earth story told by the abuser is that the victim is lying to gain an advantage in family lore.

You'll notice as well that I'll use the term survivor and victim interchangeably, and this is intentional, and it's an effort to avoid stereotypes.

So I'll begin by examining the fabrication myth. And that is the idea that women lie about being abused by their current or former spouses.

After examining it all, then turn to Carmen and how this stereotypical reasoning was perpetuated by the lawyer in that case.

And finally, I'll end with my offering of lawyers professional obligations in this context, with the assistance of a positive legal ethics lens.

So why now? Why is the fabrication myth resurfacing now?

And what is it?

The Federal Divorce Act was amended in 2021 to include family violence for the first time, primarily in relation to parenting disputes.

So family violence is the umbrella term.

It's defined in the Divorce Act, and it's inclusive of abuse by family members like child abuse and sibling abuse.

My focus is IPV, which is a subset of family violence, and it means abuse by an intimate partner,

whether common law, married, separated, and inclusive of queer relationships.

So family violence is now included in the parenting sections of the Divorce Act.

Whether a child is or has been directly or indirectly exposed to family violence

is relevant to making a determination about that child's best interests.

And most provincial family law legislation either follow the Divorce Act or have something similar.

So I want to take a moment here to situate my argument within a critical feminist lens that

is mindful of intersectionality is one that is inclusive of an IPV anti exceptionalism lens.

IPV. Anti exceptionalism is a rejection of the idea that IPV is rare or an exceptional event.

In the paper. I provide statistical support for this lens support that recognises the gender based violence epidemic.

The way family law is structured tends to analyse family violence.

The system is designed for the parties who have equality in arms but can't agree on their property,

the economic consequences of separation or their parenting arrangements.

IPV is treated as the exceptional event and in doing so abuse is often minimised.

The reason that I use this lens is because a legal system that treats IPV as an exceptional occurrence contributes to systemic inequalities.

That IPV is rare is an illusion.

Believing that IPV is rare gives legal actors permission to harmfully assume that the case in front of them is not about IPV.

It gives permission to believe that the allegation of IPV is false or a fabrication,

or that if there was IPV, it's not serious enough to require a remedy.

This belief amplifies the systemic oppression survivors face when trying to pursue their legal entitlements.

It also helps to create space for the perpetuation of myths and stereotypes.

So identifying missing stereotypes and how they're manipulated by legal actors is a powerful feminist methodology.

Doing so helps me to identify and articulate what the problems are, what's wrong with what the lawyer is doing.

So it's not simply that I think it's inappropriate or wrong. And I'm also not drawing from ideas of justice or morality,

which are both riddled with challenges given moral pluralism and competing ideas of what justice means.

Instead, I use a feminist lens. The problem with lawyers relying on myths and stereotypes and constructing a narrative with their help,

is that by doing so, they're filling in the gaps in the evidence.

With that stereotypical reasoning which a judge may then rely on, they're impeding the fact finding process.

There are significant questions about why lawyers do this.

But I'm trying to understand what the family lawyer's current professional obligations are,

to encourage them to follow them, and to determine what law reform is needed.

Jennifer Kushan has described myths and stereotypes as assumptions or expectations that are false or faulty,

and are linked to disadvantageous beliefs, attitudes, and narratives.

So that definition was also cited with approval by the B.C. Court of Appeal in common.

IPV myths. In particular, they find a way to explain away the violence to discount it and exonerate the abuser.

They support IPV exceptionalism. She must be lying to gain an advantage in family court.

She didn't call the police at the right time. She must be lying. She wants revenge because he did whatever thing he did.

Therefore, the IPV can't be real. He must be innocent.

So in those examples, I was gendered. I framed the survivor as a woman and the perpetrator as a man in a heterosexual relationship.

And I want to say two things about this. First, I worked from the view that IPV is gendered.

Most often it is perpetrated by men against women.

Marginalised women in particular are disproportionately victimised and I have stats to support this in the paper.

Second, although I often speak in terms of heterosexual relationships, it's not meant to discount queer people in relationships.

IPV occurs in same sex relationships, and to be sure, gender diverse people are also disproportionately victimised.

What we don't have is the same depth of understanding of statistics and dynamics, because the studies that we have are available are limited.

Victims are also also subjected to additional layers of myths and stereotypes based on assumptions connected to their race,

indigeneity, sexual orientation, gender identity, disability, and socioeconomic status.

There are also myths and stereotypes that work in family lore the good mother myth,

myths about how to separate well, and hormonal or heteronormative ideals underpinning neoliberal policies.

In IPV cases. When myths and stereotypes are relied upon, the effect is to minimise, obscure and deny the violence.

In a parenting case, such as the trial decision in Carmen, the court might make an order that has not taken violence into account,

increasing risk to the survivor and the child as a result.

The court might fail to order protections, they may order unsupervised access or utilise the violence.

Blame both parties for not separating well in order. Shared parenting.

It's also important to observe here that this can be retraumatizing for victims.

The victim is silence the same way that she was at home, but now it's at an institutional level.

Empirical research shows that it's court processes that can be the most traumatic for victims.

It's nearly impossible for them to face their own views of users in court.

But what's actually worse is the lack of protection and understanding from the judicial system and legal actors.

For some, this imposes pressure to settle, to avoid court altogether and avoid a court order.

I also note here that it's well. This is well documented in Canadian, Australian, UK and American research.

Lawyers will commonly advise their clients who are victims of abuse, not to allege family violence at all because it will work against them.

So the fabrication method has deep tentacles that impede victims abilities to access justice.

What is the fabrication myth? It's the idea that women lie about abuse to gain an advantage in family court,

and it's built on stereotypes about women and how they behave post separation.

Women are assumed to fabricate claims of family violence, IPV, sexual assaults,

and child abuse for revenge, to obtain a parenting advantage, or to gain financially.

To be clear, this is not to say that people don't lie about being abused.

Some people do, including abusers themselves, but all women don't lie about it and victims don't lie about it.

It's also not empirically proven that women fabricate abuse, or that they believe lying about abuse would be helpful,

but it is shown that legal actors believe that women lie about abuse.

Victims rarely talk about their experiences of abuse, and they suffer because of the myths, power, and influence.

In my view, there's two difficult stereotypes at work here underpinning the fabrication myth the hysterical woman and the vengeful woman.

The hysterical woman is perhaps the original IPV myth.

So in contrast to the reasonable man inherent in the liberally legal subject with characteristics of rationality and objectivity,

the hysterical woman is relied upon to explain away violence by suggesting the woman is irrational.

Therefore what she says is unreliable and she should not be believed.

Her claims of a traumatic experience are framed as untrue. She is recast, dismissed as crazy or hysterical.

Hysteria was once a medical diagnosis, and that labels also implied in battered woman syndrome and parental alienation syndrome.

The medical community has shifted to the study of trauma, but the stigma of mental illness lingers.

Indeed, in recent UK research on their family justice system showed that women need to appear not over

or under emotional but in perfect pitch in order to avoid appearing crazy or hysterical.

That is, in order to be believed. These dynamics present an opportunity for a lawyer representing an abuser to

attempt to provoke stereotypical reasoning about the victim's claims of abuse.

The second stereotype is the vengeful woman. That is the idea that women will take revenge on a former lover.

Whatever she alleges is thought to be a lie coming from a place of revenge.

And this is further entrenched and complicated by sexuality, race and endogeneity tropes that hinge on women's untrustworthiness.

In C boy Boyer. The stereotype that women are fickle and full of spite and seeking revenge on past lovers was debunked by Justice Loretta Bay.

However, the stereotype has retained its influence in family lore.

The stereotype that women are vengeful is also intertwined with ideas about acceptable feminine responses to victimisation.

Women are encouraged to forgive and forget for the sake of their child for the benefit of familial harmony.

If the woman is adversarial and claims family violence, she may be blamed for bringing acrimony into a conciliatory process.

She may be judged to be an alienating parent. She may be blamed for reintroducing fault into a no fault process.

In family lore, the advantage women are believed to pursue refers to two ascribed motives, namely financial or parenting.

Both of these motives have deep roots in family lore, which I explained in the paper in Pam in The Lawyer Accuse the mother of parenting sabotage.

To be sure, parenting cases are the most fiercely contested.

Family law disputes. There's a persistent assumption that women will block access to their children following a relationship breakdown.

However, research shows that mothers,

including survivors they often wish their former spouses would be involved in their child's life, including when there's abuse.

Another stereotype is at work here too. The good mother.

She would protect her child from violence. She wouldn't have stayed with an abusive partner.

And when she wouldn't want him to have access. Therefore, the survivor must not be a good mother if her claim is true.

If she agreed to any contact. At the same time, she's also blamed if her claim is not proven because she's a liar, conflictual and vengeful.

Judges may feel the need to protect the father and the child,

ensure an ongoing relationship between the two through orders of shared parenting and unsupervised parenting time, as happened in Camden.

So, Hamon, what happened and what does this decision mean for lawyers?

Professional obligations. So Kammen was decided under the British Columbia Family Law Act.

In this case, the parents had been married for five years. They had one child together who was two at the time of separation.

The mother was the child's primary caregiver, and she received disability benefits because of a brain injury caused by two car accidents.

The father was a corrections officer, but he was unemployed at the time of trial.

After an incident of physical violence. The mother took the child from the home in Chilliwack, British Columbia,

to live with her parents on to nine more in, uh, in Nanaimo on Vancouver Island.

The father was criminally charged include for uttering threats and criminal harassment.

There were ten charges in total. In an interim pre bearing rent decision,

the mother and child were ordered to move back to the Lower Mainland to facilitate parenting time with the father.

By the time of trial, there were 17 interim orders and parenting was the primary issue.

The mother alleged the father was both physically and verbally assaulted her, including in front of their child.

The mother had agreed to shared parenting, but she wanted it supervised because of the IPV.

The father, who was the claimant, wanted unsupervised shared parenting.

Uh, Jennifer and I wrote a blog post about this case which discussed the facts in depth for anybody who's interested.

And the blog is cross posted on both slaw slaw and our blog.

For today's purpose, I'm going to focus on what the lawyer argued.

So in Camden, the father's lawyer told a flat Earth story reflecting the fabrication myth.

He alleged that the mother was lying about being a victim of IPV.

That her motive was to sabotage the relationship between the father and the child.

The lawyer relied on his name to suggest the mother fabricated evidence and.

And child. And I'll explain. Argument.

Parenting sabotage was the lawyer's primary narrative. The lawyer stated it explicitly in his closing submissions.

When you said the mother exaggerated and fabricated to accomplish the goal of

ensuring the father does not have a meaningful relationship with their daughter.

The lawyer claimed the mother did not want to share parenting time and was overly possessive of the child,

and that the mother's goal was to punish the father and make sure parenting

time was as uncomfortable and unpleasant as possible to advance her true goal,

which was to restrict and perhaps terminate the father's relationship with their daughter.

In support of his allegations, the lawyer suggested the mother involved the police to fabricate evidence of

abuse and ensure the father could not have meaningful contact with the child.

In their factum.

The lawyer wrote that the mother had considerable success in having the father arrested and ultimately charged with criminal offences,

but she did not prove the allegations at trial.

The lawyer suggested that involving the police was strategic, and that failing to prove her prove her claims was proof they never happened.

In essence, he drew from the myth and stereotype that when criminal charges are unsuccessful or dropped or dropped, it means the abuse never occurred.

In addition, the lawyer suggested the mother was not actually fearful of the father offending, again implying fabrication.

During parenting exchanges, the mother had breached the 500 metre condition which had been imposed after the charge.

The father was charged with assault.

The lawyer claimed the mother was weaponising the condition because it had the desired effect of limiting parenting time for the father.

The lawyer suggested the mother was trying to get the father in trouble. Uh, consistent with her goal of sabotaging a relationship with the child.

The lawyer also perpetuated the hysterical woman stereotype.

The mother had a disability,

and the father's lawyer argued that the mother had a history of exaggerating and misleading authorities in order to get her desired outcome,

including by exaggerating her disability to get a disability pass and disability credits.

The only evidence relied upon was the disability itself,

suggesting the suggestion was that the mother had a habit of lying to authorities for her own benefit,

implying she was using the same tactic to support her objective of parenting sabotage,

and implying that her disability suggested she would not know the truth.

Finally, the lawyers narrative also relied on the Huxtable mother stereotype,

accusing the mother of unnecessarily subjecting the child to therapy to support her allegation of child abuse.

According to this stereotype, a vengeful woman would pursue her plan regardless of the harm that would come to her child in the process.

The bad mother. The lawyer claimed that therapy was a tool to advance the mother's claim,

and was not actually necessary for the child that there was no credible evidence of trauma warranting weekly therapy,

and that enrolment was merely to provide cover for her claim that the child was harmed by the father's abuse.

He argued that the child protection concerns were fabricated to sabotage the father's relationship with the child.

In short,

the lawyers theory of the case with the mother was lying about abuse to sabotage the parenting relationship between the father and the child.

So the trial judge, Justice Paul, seemed to have believed the myth.

He found the child was not at risk, implying instead that the mother fabricated the abuse, including by using the police as a weapon.

The case was framed as remarkably high conflict. Uh, neutralising the of the violence.

And in that sense, the trial judge accepted the lawyer's theory of the case.

The IPV was minimised, and sometimes the mother's evidence was ignored altogether.

He ordered unsupervised parenting time for the father.

So the mother appealed. She claimed that the trial judge failed to properly consider sections 37 and 38 of the B.C. Family Law Act,

which is the best interests of the child and family violence.

And in failing to properly consider them, she claimed the trial judge made two errors.

The first was to assume that the presumption that there was a presumption of equal parenting time, which there is no such presumption.

And the second was to presume that family violence is only significant when it's directed towards the child,

which we know from bear and grad, and social science research is also untrue.

The mother also took issue with the trial judge characterisation of her conduct as weaponizing,

arguing that the allegation was not supported by evidence and that it reflected a typical.

So she sought a new trial and interim supervised parenting.

In contrast, the father conceded sections 37 and 38 were not given a detailed analysis.

But he argued that the trial judge had taken a holistic approach in a high conflict case and had properly weighed all the evidence,

and in doing so found no credible or reliable evidence of family violence.

So what did the Court of Appeal say? They identified the fabrication mess and they sent the case back for trial, which will be heard later this year.

The decision was unanimous. They held there was no question that at the trial, the father had advanced the fabrication myth.

They emphasise barren grit and the heavy responsibility on lower courts to determine the best interests of a child.

An appellate courts inability to intervene unless the judge has committed a material error,

a serious misapprehension of the evidence or an error in the law.

In this case, there was a material error when the trial judge failed to conduct a proper analysis

of the allegations of family violence and did not factually determine them.

An analysis of family violence allegations must be done before assessing the best interests of the child.

The trial judge had not considered the effect of indirect exposure to IPV on the child,

only considering whether the abuse was directed towards the child.

In relation to the fabrication myth, the trial judge had not protected against the potential for IPV myths and stereotypes to influence his reasoning.

According to the Court of Appeal, the father's case was framed in perfect alignment with the myth, and the judge seemed to believe it.

The court recognised that family violence is notoriously difficult to prove,

but that an inability to do so on a balance of probabilities doesn't mean that it must not have occurred,

or, importantly, that it was falsely alleged for the specific purpose of furthering a litigation objective.

To approach allegations of family violence on the assumption explicit or implied,

that these allegations are routinely made for tactical reasons, will give rise to a reversible error.

So this case is important because it tells us that judges can't start with the assumption that failure to prove IPV means the victim lied,

and to do so will give rise to a reversible error. Trial judges must determine whether an allegation is fabricated by assessing the

credibility and reliability of the assertion as part of a thorough fact finding process,

and the determination should not be based on unfounded assumptions about women's motivations in family law.

So the lawyer returning to my original question after I hydrate.

What are the lawyers professional obligations in relation to the fabrication myth?

So in this part, I'm building on the work of ethics scholars such as Elaine Craig and David Tan,

who have both used legal ethics to consider rape myths and the role of defence counsel in sexual assault cases.

To answer my question,

I used a positive legal ethics framework to understand the lawyer's role that we have and a feminist analysis to understand its limitations,

to help identify and articulate the problems. So following a positive analysis to establish lawyer's existing professional obligations.

Family Federation of Law Societies Model Code of Professional Conduct, which I refer to as the Model Code and Legal Ethics Theory.

I draw from positive theorists who argue that the lawyer's role is to provide access

to our system of laws and facilitate the client's accomplishments of their own goals.

These theorists explain the is as opposed to the art.

Combined,

they provide a persuasive explanation of the lawyer's role that's reflected in Canadian professional codes of conduct and the law governing lawyers,

making them a practical theoretical framework for examining the family lawyer's professional obligations.

According to a positive framework. A lawyer's role is to pursue their clients legal entitlements within the bounds of legality.

A lawyer must only act in accordance with what the law allows and the client instructs.

The lawyer is the client's fiduciary, providing legal advice and pursuing the client's legal entitlements.

The pillars of this theoretical framework are respect for the law, the rule of law, and client autonomy.

This theoretical framework does not task lawyers with providing moral advice to their client about what's best for them,

nor does it ask the lawyer to decide what's best for the family.

Rather, their goals about facilitating the client's accomplishments of their own goals.

So this is not to say a lawyer can't talk to their clients about the wisdom of their interests.

And in some narrow instances, the law does require such a conversation, including when the dispute impacts the client's child.

A positive explanation for the lawyer's role respects the law, and it doesn't look at it as a thing to work around.

The goal is not to try to provide something that the law has not, which is effectively what stereotypical reasoning is doing.

It's manipulating judges reasoning, and it's impeding parties abilities to access the law.

This is an important starting place for my next argument. So there's different ways to look at this aspect.

And today I want to focus on what I think is the most difficult.

And that is when lawyers representing abusers use the myth as a defensive strategy, which is what the lawyer did in common.

In other words, I'm focusing on the lawyer who represents the abusive spouse.

One significant complexity here is that some people will fabricate a claim, including without a lawyer, so it could be a legitimate argument.

However, my focus is on actual abusers, which is also why I'm referring to them as abusers.

I have focus on their lawyers, who use the fabrication myth as a strategy based solely on stereotypical reasoning.

So what can a lawyer do? Again, respecting the law. What are the lawyer's existing obligations as an advocate in this context?

As an advocate, a lawyer must raise fearlessly every issue, advance every argument, ask every question,

however distasteful that the lawyer thinks will help the client's case, including every defence authorised by law.

I'm sure you all know this provision from the model code. Suggesting fabrication when based solely on stereotypical reasoning.

It's not authorised by law, which Carmen supports.

In a parenting case, there is no legal entitlement to suggest an allegation of family violence was made up by the victim for a litigation advantage.

Beyond written pleadings and correspondence,

the most obvious way a lawyer might explicitly advance the fabrication myth is through their opening and closing arguments,

and in direct and cross-examinations focusing on questioning when a lawyer questions a witness.

There are clear boundaries. Lawyers can't misstate the facts or assert as true a fact that the evidence doesn't support.

Pursuant to little a cross, examine or needs a good faith basis to ask a question which includes a requirements reflected in the model code.

Not to make a suggestion to a witness recklessly, or knowing them to be false.

Lawyers can't assert or imply in a manner that's calculated to mislead.

A lawyer's questions must not be in bad faith.

Lawyers can't mislead given their obligations to the rule of law, which again, is what stereotypical reasoning does.

Lawyers also can't bully witnesses.

The moral code requires that lawyers discourage a client from attempts to gain an advantage by harassing the other side.

They can't needlessly abuse Hector or harass a witness.

And the duty of civility further underpins these requirements, despite its controversial nature.

So there are limits. Lawyers can't explicitly claim the victim is lying because they're vengeful or trying to sabotage the parenting relationship.

Not without evidence. But it's one thing to explicitly perpetuate the myth.

But that can be distinguished from a lawyer who's trying,

who is attempting to implicitly creates a stereotypical narrative that fills in the gaps in the evidence.

In family law, the victim doesn't need to prove the precise incidence of family violence.

The allegation is determined by evaluating its credibility and reliability on a balance of probabilities.

The best interests of the child are then determined pursuant to that finding, along with several other factors,

with primary consideration given to the child's physical, emotional, psychological, safety, security, and well-being.

The abuser's lawyer might downplay the abuse or indicate that there's no further actively

trying to make an honest person appear dishonest by trying to make a victim look like a liar.

And this idea, albeit not in the family violence context, is well-trodden area of legal ethics debates.

It's the problem of implicitly suggesting that a victim is lying to gain an advantage, which the lawyer did in common.

And Camon certainly says the courts must guard against both explicit and implicit perpetuation of stereotypical reasoning.

So we know lawyers shouldn't do this. It's unwise, at the very least, because judges need to be alive to it.

It would be reversible error, at least in British Columbia.

But as with Carmen, the implicit aspects of this stereotypical reasoning take different shapes.

Alienation claims are a good example. I suggest that if the lawyer knows their client is abusive.

The divorce act, the model code, and little. They require that lawyers not use stereotypical reasoning to implicitly suggest the victim lied.

The Divorce Act places the child off child safety and well-being as the primary consideration in the best interests of the child analysis,

and I suggest this imposes specific restraint on family lawyers use of stereotypical reasoning about family violence.

Criminal defence lawyers often don't want to know whether their client is guilty, so they can advance a theory or an argument of the case,

or ask questions on the assumption that their client is innocent so they can maintain their obligations to the administration of justice.

Similarly, albeit without the assistance of the charter. In parenting cases, I suggest family lawyers can't advance a theory or an argument,

or ask questions in a way that exonerates their client if they know them to be the to be abusive.

The lawyer can't claim the person is not abusive, even implicitly.

It would be divergent to their obligations to the rule of law. The lawyer can't suggest the violence didn't occur.

Doing so would mislead the court, which a lawyer can't do.

Moreover, misleading a court in a parenting case could lead to an outcome that increases risk for a child.

It could impede the court's ability to make an informed decision about a child's best interests.

At the same time, this obligation doesn't extend so far as to require lawyers to determine whether their client is abusive.

The law doesn't impose on lawyers a positive obligation to know whether there's family violence,

and then decide on that basis whether to pursue a parenting claim and how to do it.

The choice of what legal entitlements to pursue belongs to the client,

regardless of whether there's IPV, the obligation to screen, and the duty of competence.

They don't require a lawyer to definitively know whether there's IPV.

So we know lawyers can't implicitly trigger stereotypical reasoning.

They can't craft a narrative contrary to what they know to be true, but they also have no requirement to determine the truth of IPV.

So because of this gap, the challenge for defining lawyers professional obligations is when the lawyer is uncertain.

And this comes back to the question of trying to make an honest person appear dishonest.

Bradley Wendell suggested that a lawyer can attempt to discredit the testimony of a truthful witness,

but they can't do so using innuendo baseless, inflammatory arguments designed to prejudice the jury.

They can't use excessive zeal. According to Alice Woolley and Amy Salomon, when a lawyer doesn't know whether the witness is truthful,

they can ask questions that may lead to an inaccurate determination by a decision maker.

For them, it's beyond the lawyer's role to take responsibility for what the decision maker does with the information.

Even when the lawyer has reason to believe the witness is truthful,

they argue that provided the lawyer is compliant with the laws of evidence, professional rules and their client consents, they can make.

They can ask questions that make them appear dishonest.

In relation to stereotypical reasoning about IPV and pursuant to N and crook and the Divorce Act,

I suggest that door is now closed if it was ever open, and parenting court cases, questions and suggestions that may apply.

A witness has fabricated an allegation of abuse are improper if it's all stereotypical reasoning.

But there remains the problem of uncertainty and the spectrum of available evidence.

In family lore. The problem is that there's other ways to trigger the fabrication myth.

For instance, when the lawyer attempts to undermine the victim's credibility,

implicating the victim's trustworthiness, their ascribed motive for lying.

It's the interplay between the fabrication myth and the underlying stereotype that gives the myth its power that women are vengeful.

Post separation. The lawyer might try to make the victim appear confused, emotional, crazy or angry hysterical.

They may try to provoke a reaction that could lead a decision maker to assume the victim is exaggerating or fabricating.

They're still implying, and I suggest that a lawyer can't knowingly try to provoke such reasoning without evidence and,

pursuant to clients, have a legal entitlement to a fact finding process that's not influenced by stereotypical reasoning.

So the lawyer does pen in this sort of tactic. Lawyers can't confuse the fact finding process.

They can't take advantage of a victim's vulnerability in a way that jeopardises the

administration of justice and is inconsistent with their obligations to uphold the rule of law.

But it's also important to situate this dynamic within the legal test that's used in this context.

The best interests of a child. In family law, the goal is not to assess the allegation of IPV.

It's not about raising a reasonable doubt as with criminal law. In family lore,

the allegation of family violence needs to be considered with a within a complex and very

malleable legal framework designed to determine what's in the best interests of a child.

The test can encompass doubts about whether the person can act in the child's best interests.

The test considers the child's needs, including their need for stability, their history of care,

and the caregivers ability to meet the needs of the child and to communicate and cooperate with the other parent.

And family law lawyers may ask questions that appear objectionable.

They can implicitly suggest the victim is unstable, hysterical, vengeful, and therefore a bad mother,

and that information could be relevant to determining what's in the best interests of a child.

Their trustworthiness, their apparent need for revenge, their emotionality can be triggered by some of the test factors.

The questions can appear to be in good faith. They may be focussed on the child, but provoke stereotypical reasoning.

The intentionally flexible nature of the test creates space that Kammen and lawyers ethics struggle to reach.

The challenge is to dispel the stereotypes that give the myth its power, and that is extremely difficult to do.

One way through this tension might be to hinge the lawyer's professional obligations on the child,

and different legal ethics approaches would do that, I think.

For instance, to argue that lawyers should draw from their own morality and consider the child's well-being,

and to craft their argument from that perspective,

seeking an outcome that they believe is best for the client's child to effectively usurp the court's role.

One problem with this is the risk that a lawyer will base their decisions on stereotypical reasoning, but more directly for a positive framework.

A law doesn't impose a duty on lawyers to consider their clients child, and the child's interests are beyond the lawyer's role.

Our justice system is built on the premise of a lawyer's duty of loyalty to their client,

and that obligation is only balanced by their duty to the administration of justice.

A lawyer can't sacrifice their own client's interests in favour of somebody else.

Lawyers do have an obligation to advise their clients about the relevance of IPV in parenting cases per the Divorce Act and the model code,

and they can advise the client on what they think is best for the child. But that's it.

But I suggest that if lawyers comply with their professional obligations,

it does get us some distance in preventing the perpetuation of stare stereotypical reasoning by legal actors.

But there are questions about why lawyers choose to advocate the way the lawyer did in common.

Why we think advocacy means manipulating the law.

As I mentioned at the beginning, I'm trying to encourage lawyers to live up to their professional obligations.

Hammond coupled with the Divorce Act, it supports lawyer's obligations to uphold the public's confidence in the administration of justice.

Lawyers have a responsibility to uphold the law rather than undermine its effective functioning.

Lawyers should inspire trust and confidence and stereotypical reasoning with a purpose of humiliating the victim,

distracting the court, impeding the fact finding process, and leading to an outcome that increases risk for the victim and child.

It does the opposite.

It deters other victims from pursuing their claims of IPV, making it reasonable for lawyers to advise survivors not to allege abuse at all.

Pursuant to their obligations to the rule of law. Lawyers must not prevent the justice system from working as it should.

They must not contribute to the feminisation of disadvantage, influencing victims not to pursue their legal entitlements.

That said, looking to lawyers to change their advocacy only gets us so far given the gaps and

because of users can self represent and they don't have the same obligations.

We also need to look to judges to identify stereotypical reasoning and regulate their courtrooms.

It needs to not be advantageous to rely on stereotypical reasoning.

Alienation claims, fabrication claims, suggestions of mental instability.

Law reform can help with this. The fabrication myth influenced the reasoning of the Ontario Court of Appeals decision in Ahluwalia,

the fear that a family violence may encourage allegations of faults in every case,

suggesting it would lead to an increase in fabricated claims contrary to a no fault system.

Jennifer cocaine and I discuss this in our paper on Ahluwalia, which is on screen now.

And dare I hope that the Supreme Court of Canada debunks the fabrication myth when deciding Ahluwalia.

In the meantime, it is not as advantageous for lawyers to advance the methods of defensive strategy in parenting cases.

Given the court's responsibility to consider the evidence.

And in the end, Kammen also doesn't change the fact that many women are disadvantaged in the family justice system.

The lawyer was able to use the fabrication myth so effectively in this case because the judge allowed it,

but also because the mother had little by way of alternative. Opting out of litigation is not always an option.

Victims often can't negotiate with their abusers, a process that requires some good faith and,

ideally, protections by way of a skilled and trained mediator and or counsel on both sides.

In this case, the mother was self represented at trial and her lawyers worked pro bono at the appellate level.

Most victims don't have access to pro bono legal services from a feminist organisation experienced in family violence litigation.

We need more social supports to help survivors. We need to fix the gender gap in terms of pay.

Women need employment opportunities beyond the caring industries. We need legal aid, funding and solutions to the homeless problem.

For those who leave abusive relationships, we need affordable childcare options.

We need ways for women to leave abusive relationships and stay free of them.

We also need a lot more research and people to do this important work.

So thank you again for the opportunity.