Author Archives: Jennifer Koshan

About Jennifer Koshan

B.Sc., LL.B (Calgary), LL.M. (British Columbia). Professor. Member of the Alberta Bar. Please click here for more information.

Domestic Violence and Legal Issues Related to COVID-19, Part II

By: Jennifer Koshan

PDF Version: Domestic Violence and Legal Issues Related to COVID-19, Part II

In my last post, I discussed domestic violence dimensions of the responses of the government and judiciary in Alberta to the COVID-19 pandemic, focusing primarily on provincial law and policy. This follow-up post reviews additional provincial laws and policies (including those related to protection orders and employment/occupational health and safety), federal laws (including those governing protection orders on First Nations reserves, immigration, and employment), and the overarching human rights context for responses to domestic violence and COVID-19 by governments and private actors such as employers. Continue reading →

Domestic Violence and Legal Responses to COVID-19 in Alberta

By: Jennifer Koshan

PDF Version: Domestic Violence and Legal Responses to COVID-19 in Alberta

Matters Commented On: Ministerial Order No 2020-011 (Community and Social Services); Court of Queen’s Bench Of Alberta, Amended Master Order #2 Relating to Court’s Response to the COVID-19 Virus; Court of Queen’s Bench Of Alberta, Pandemic Operations/ FAQ; The Provincial Court of Alberta, COVID-19 Pandemic Planning for the Scheduling of Matters

Many commentators have remarked on how COVID-19 and government orders to self-isolate will lead to increased rates of domestic violence and adversely impact victims of domestic violence seeking protection. Last weekend, for example, UN Secretary General António Guterres remarked that there has already been a “horrifying global surge in domestic violence” and urged “all governments to make the prevention and redress of violence against women a key part of their national response plans for COVID-19.” The law clearly has a significant role to play in this context. As noted in a previous post, domestic violence matters engage many legal issues: civil protection order law, criminal law, family and child protection law, residential tenancies law, social assistance and housing law, and employment law, to name a few. This post reviews some of the efforts of lawmakers and courts in Alberta to respond to domestic violence issues in light of the COVID-19 pandemic and identifies some areas where further measures are needed. My focus is on domestic violence – in other words, violence in the context of intimate partner relationships – rather than child or elder abuse. Child and elder abuse cases also present challenging issues in the current pandemic, but they are beyond the scope of my analysis here. Continue reading →

“Extraordinarily Difficult”: Parenting Time and the Rights of Children in Cases Involving Family Violence

By: Jennifer Koshan and Irene Oh

PDF Version: “Extraordinarily Difficult”: Parenting Time and the Rights of Children in Cases Involving Family Violence

Case Commented On: DAF v SRG, 2020 ABCA 25 (CanLII)

Family law cases can raise issues that are very challenging for the legal system to address, especially where there has been domestic violence. As the Alberta Court of Appeal recently noted in DAF v SRG, these cases can entail “extraordinarily difficult decisions” with “potentially profound consequences for the parties and the children involved” (at para 19). Yet these cases are “made challenging by limited time and often conflicting affidavits” and may involve “disparate proceedings in multiple courts” (at para 19). Alberta was moving toward a Unified Family Court that would have consolidated family proceedings in one court presided over by judges experienced in family law. However, in late February the government put this initiative on hold, apparently because of costs.

The decision of Justices Patricia Rowbotham, Sheila Greckol and Dawn Pentelechuk in DAF v SRG underlines the need for a Unified Family Court in Alberta, raising issues about what level of parental contact with children is appropriate where there has been domestic violence and how the voices of children can be brought forward in such cases. The decision also provides an opportunity to discuss recent amendments to the Divorce Act, RSC 1985, c 3 (2nd Supp) and what impact those amendments should have on family law in Alberta. Continue reading →

Law Needs Feminism Because…

By: Jennifer Koshan

PDF Version: Law Needs Feminism Because…

Event Commented On: Law Needs Feminism Because, 2020 National Forum x Calgary

Law Needs Feminism Because (LNFB) is a Canadian-based collective made up of law students and legal professionals that undertakes advocacy around issues of intersectional feminism. Intersectional feminism, a term first coined by Kimberlé Crenshaw, embraces the idea that women may be disadvantaged through intersecting axes of oppression such as gender and race. LNFB advocates on issues of intersectional feminism through an annual photo campaign at law schools across the country, allowing students, faculty and staff to share their perspectives and lived experiences of disadvantage based on gender and other grounds. The University of Calgary Faculty of Law has participated in this photo campaign three times now. LNFB also holds an annual National Forum at a Canadian law school, and its fourth annual Forum is taking place in Calgary March 6 and 7, 2020. Our Faculty’s intrepid student group, the Calgary Women Studying Law Association (CWSLA), is hosting the Forum with the theme of Innovative Intersectionality. The Forum will bring together law students (and those in related disciplines) from across Canada along with legal and other professionals and members of the public more broadly.

ABlawg readers who are interested in these issues are encouraged to attend the LNFB Forum. Registration for the Forum and its many interesting workshops is available here and the schedule is available here. For those who can’t attend, ABlawg will be featuring a series of blog posts on the Forum in the weeks to come.

This post may be cited as: Jennifer Koshan, “Law Needs Feminsm Because…” (March 6, 2020), online: ABlawg, http://ablawg.ca/wp-content/uploads/2018/07/Blog_JK_LNFB.pdf

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Legal Gaps Persist For Intimate Partner Sexual Violence After Key Ruling

By: Jennifer Koshan and Lise Gotell

PDF Version: Legal Gaps Persist For Intimate Partner Sexual Violence After Key Ruling

Case Commented On: R. v. Goldfinch, 2019 SCC 38 (CanLII)

It has been over 25 years since Supreme Court of Canada Justice Claire L’Heureux Dubé discredited the myth that rape is most often perpetrated by strangers in R v Seaboyer; R v Gayme, 1991 CanLII 76 (SCC), [1991] 2 SCR 577. Sexual violence by men against their female intimate partners is, sadly, a common occurrence in Canada and worldwide. Yet myths about spousal sexual violence – marital rape myths – continue to infuse the approach to sexual assault by a wide range of legal actors, including police, prosecutors, defence lawyers and judges.

These myths include the beliefs that consent can be assumed or implied within intimate relationships, that women frequently make false accusations to gain an advantage in family law proceedings, and that marital rape is less serious than rape between strangers because the parties have had sex before. Social science evidence has established that marital rape is often more violent, not less, that injuries are more commonly experienced, and that survivors experience higher rates of trauma. Continue reading →