Author: Jennifer Koshan Page 3 of 44

B.Sc., LL.B (Calgary), LL.M. (British Columbia).
Professor. Member of the Alberta Bar.
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Family Violence Torts and Their Limits in Alberta

By Jennifer Koshan

On December 20, 2023

In Family, Provincial Court, Torts

By: Jennifer Koshan

Case Commented On: Colenutt v Colenutt, 2023 ABKB 562 (CanLII)

PDF Version: Family Violence Torts and Their Limits in Alberta

In September 2023, Deanne Sowter and I wrote an ABlawg post on the tort of family violence, which was initially recognized as a new tort by the Ontario Superior Court and then rejected by the Court of Appeal, along with the alternative tort of coercive control (see Ahluwalia v Ahluwalia, 2022 ONSC 1303 (CanLII) (Ahluwalia ONSC); 2023 ONCA 476 (CanLII) (Ahluwalia ONCA)). An Alberta court has now followed the Ontario Court of Appeal in holding that the torts of family violence and coercive control should not be accepted in this province. This post considers Justice Debra Yungwirth’s reasons in Colenutt v Colenutt, 2023 ABKB 562 (CanLII), including limitations issues that arose in the case and the need for legislative reform.

Gender-Affirming Names and Pronouns, Parental Control, and Family Violence

By Jennifer Koshan

On November 23, 2023

In Constitutional, Family, Human Rights

By: Jennifer Koshan

Policy Proposal Commented On: United Conservative Party, Annual General Meeting Policy and Governance Resolutions, Policy Resolution 8 (November 2023)

PDF Version: Gender-Affirming Names and Pronouns, Parental Control, and Family Violence

Content Warning: This post contains descriptions of family violence and gender identity abuse.

At the United Conservative Party (UCP)’s recent annual general meeting, party members voted on a number of policy proposals. Policy Resolution 8 was “almost unanimously” supported, and would “[r]equire Teachers, Schools, and School Boards to obtain the written consent of the parent/guardian of a student under the age of 16 prior to changing the name and/or pronouns used by the student” (United Conservative Party, Annual General Meeting Policy and Governance Resolutions at 38 (UCP Resolutions)). In a similar vein, Policy Resolution 17 would require the government to “[s]upport a comprehensive Bill of Parental Rights which ensures that all legislation will recognize and support parents’ rights to be informed of and in charge of all decisions to do with all services paid for by the province, including education and health care” (UCP Resolutions at 49). The Minister of Education, Demetrios Nicolaides, recently stated that the government is having an “active conversation” about this matter.

The Myth of False Allegations of Intimate Partner Violence

By Jennifer Koshan

On November 8, 2023

In Criminal, Equality, Family

By: Jennifer Koshan

Case Commented On: R v RMD, 2022 ABKB 851 (CanLII)

PDF Version: The Myth of False Allegations of Intimate Partner Violence

A colleague recently brought to my attention a decision concerning intimate partner sexual violence that was released earlier this year. In R v RMD, Justice Robert Graesser dealt with an application by the accused to cross-examine the complainant – his previous partner – on her past sexual activity in a criminal trial for alleged sexual assault. The court’s reasons for decision on this application arguably perpetuate one of the most common myths about intimate partner violence (IPV): that litigants make false or exaggerated claims of violence to gain an advantage in family law disputes. Indeed, the court went so far as to take judicial notice of this “fact” (at para 45). This post unpacks the decision, placing it in the larger context of gendered myths and stereotypes about IPV and the relevant research and case law.

Submission to Justice Canada on the Criminalization of Coercive Control

By Jennifer Koshan

On November 2, 2023

In Criminal, Law Reform

By: Janet Mosher, Shushanna Harris, Jennifer Koshan, and Wanda Wiegers

Bill Commented On: Bill C-332, An Act to amend the Criminal Code (controlling or coercive conduct), First Session, Forty-fourth Parliament (2023)

PDF Version: Submission to Justice Canada on the Criminalization of Coercive Control

Justice Canada has been holding an engagement process on the issue of whether an offence of coercive control should be added to the Criminal Code, RSC 1985, c C-46. This offence has been proposed in a series of private members bills, most recently, Bill C-332. Our submission (link below) argues that it is imperative that actors in all legal domains acquire a nuanced and contextual understanding of coercive control derived from an intersectional analysis that attends to how multiple systems of oppression interact to shape the tactics of coercion and control. However, we do not support the criminalization of coercive control, either as a standalone offence or within a broader offence of domestic abuse/violence. We argue that it is the former approach – the acquisition of deep and contextualized knowledge by legal system actors – and not criminalization, that holds promise in enhancing safety for women and children.

Torts and Family Violence: Ahluwalia v Ahluwalia

By Jennifer Koshan

On September 15, 2023

In Family, Torts

By: Jennifer Koshan and Deanne Sowter

Case Commented On: Ahluwalia v Ahluwalia, 2022 ONSC 1303 (Can LII); 2023 ONCA 476 (CanLII)

PDF Version: Torts and Family Violence: Ahluwalia v Ahluwalia

Intimate partner violence (IPV) takes many forms, all of which cause harm to survivors (who are disproportionately women and children). In August, the Minister of Justice and Attorney General of Canada declared that gender-based violence is an epidemic. However, only certain forms of IPV were subject to legal sanction historically – primarily physical and sexual abuse, although sexual assault against a spouse was only criminalized in 1983 (see Criminal Code, RSC 1985, c C-46, s 278). More recently, beginning in the 1970s and 80s, emotional and financial abuse and coercive control have been recognized as insidious forms of IPV. Coercive control focuses on patterns rather than discrete incidents of abuse, and on the impact on the survivor’s autonomy rather than physical injuries (see Evan Stark, Coercive Control: How Men Entrap Women in Personal Life (New York: Oxford University Press, 2007)). Although coercive control is not currently criminalized in Canada (unlike some other common law jurisdictions such as England and Wales), broad definitions of IPV that include coercive control and emotional and financial abuse are now included in many Canadian laws. There are laws declaring IPV to be relevant to parenting decisions (including relocation), protection orders, early termination of leases, employment leave, and other legal remedies (for a comparison of these laws across Canada, see here). Gaps in the law’s recognition of IPV remain, however. For example, in Alberta, definitions of family violence in the Family Law Act, SA 2003, c F-4.5, and Protection Against Family Violence Act, RSA 2000, c P-27, do not yet include emotional and financial abuse or coercive control (for discussion see e.g. here). Moreover, as we discuss in this post, tort law has inconsistently provided avenues of economic redress for the harms caused by IPV.