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.

Mandatory Dispute Resolution Coming Back to Alberta, But What About Domestic Violence Cases?

By: Jennifer Koshan, Janet Mosher and Wanda Wiegers

PDF Version: Mandatory Dispute Resolution Coming Back to Alberta, But What About Domestic Violence Cases?

Matter Commented On: Court of Queen’s Bench of Alberta, Notice to the Profession & Public – Enforcement of Mandatory Alternative Dispute Resolution Rules 8.4(3)(A) and 8.5(1)(A)

Last month, the Court of Queen’s Bench of Alberta issued a Notice to the Profession indicating that it would be lifting the suspension of the mandatory alternative dispute resolution (ADR) provisions of the Alberta Rules of Court, Alta Reg 124/2010, for a one-year pilot period commencing September 1, 2019. Mandatory ADR (or mandatory judicial dispute resolution, JDR) will now apply once again to civil and family litigation in Alberta. Although there are some exceptions to this requirement, there is no explicit exemption for domestic violence cases. As noted in a previous ABlawg post concerning similar developments under family legislation in Saskatchewan and federally under the Divorce Act, RSC 1985, c 3 (2nd Supp), as well as a more recent post on a government review of civil and family legislation in Ontario, cases involving domestic violence may not be not appropriate for ADR, and should be explicitly exempted from any mandatory requirements. There should also be screening and training requirements on domestic violence for those who will be assessing exemptions and conducting ADR. Continue reading →

Ontario’s Review of Family and Civil Legislation, Regulations, and Processes: The Need to Prioritize Domestic Violence

By: Janet Mosher, Jennifer Koshan and Wanda Wiegers

PDF Version: Ontario’s Review of Family and Civil Legislation, Regulations, and Processes: The Need to Prioritize Domestic Violence

Matter Commented On: Ontario Ministry of the Attorney General, Review of Family and Civil Legislation, Regulations, and Processes

On July 9, 2019, the government of Ontario announced that the Parliamentary Assistant to the Attorney General, Lindsey Park, was undertaking a review of family and civil legislation, regulations, and processes. According to the news release, “The review will explore ways to simplify family and civil court processes, reduce costs and delays, and encourage the earlier resolution of disputes.” More specifically, the Ministry of the Attorney General is seeking to:

  • direct family law matters out of a combative court process, where possible;
  • reduce the cost of the process to families and taxpayers; and
  • streamline the processes to shorten the time to resolution.

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Hearsay? Another Perspective on Farm and Ranch Work and the Alleged Flaws of Bill 6

By: Jennifer Koshan

PDF Version: Hearsay? Another Perspective on Farm and Ranch Work and the Alleged Flaws of Bill 6

Matter Commented On: United Conservative Party Proposal to Repeal Bill 6, the Enhanced Protection for Farm and Ranch Workers Act; Hearsay Podcast of March 19, 2019

 Even before the provincial election was called, the United Conservative Party (UCP) announced that it would “make good on a key promise to Alberta’s farm families and repeal Bill 6.” The announcement claims that the Alberta New Democratic Party (NDP) failed to consult farmers in enacting the Bill, resulting in a loss of “public trust with farm and ranch families.” The UCP promises to “immediately launch comprehensive consultations with farmers, ranchers, agriculture workers and others on how best to balance the unique economic pressures of farming with the need for a common sense, flexible farm safety regime.” These consultations are intended to “develop recommendations for the introduction of the Farm Freedom and Safety Act (FFSA), which will be passed into law in 2019.”

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The Right to Support for Adult Children with Disabilities

By: Jennifer Koshan and Jonnette Watson Hamilton

PDF Version: The Right to Support for Adult Children with Disabilities

Case and Bill Commented On: Ryan v Pitchers, 2019 ABQB 19 (CanLII); Bill 28, the Family Statutes Amendment Act 2018

 As Laura Buckingham noted in an ABlawg post in December 2018, Alberta’s Bill 28, the Family Statutes Amendment Act 2018, made three key amendments:

  • creating legislated rules for property division for separating common-law couples;
  • closing a gap in child support legislation for adult children with disabilities; and
  • repealing the Married Women’s Act, RSA 2000, c M-6.

The second of these amendments was recently considered in Ryan v Pitchers, 2019 ABQB 19 (CanLII). In this case, a mother brought a constitutional challenge to the pre-amendment version of the Family Law Act, SA 2003, c F-4.5 (FLA), which did not allow disabled children of unmarried parents to obtain child support once they turned 18 and were not attending school full-time. The mother’s argument was that the definition of child in the FLA violated the equality guarantee in section 15 of the Canadian Charter of Rights and Freedoms. The government did not defend the case given the pending legislative amendment in Bill 28, and although the father raised constitutional counter-arguments, the mother’s claim was successful.

Although the decision may seem like a foregone conclusion, the section 15 analysis of Madam Justice Carolyn Phillips has some interesting features that we will comment on in this post.

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The Adverse Impact of Mandatory Victim Surcharges and the Continuing Disappearance of Section 15 Equality Rights

By: Jennifer Koshan and Jonnette Watson Hamilton

PDF Version: The Adverse Impact of Mandatory Victim Surcharges and the Continuing Disappearance of Section 15 Equality Rights

Case Commented On: R v Boudreault, 2018 SCC 58 (CanLII)

It was just over one year ago that our former colleague Sheilah Martin was appointed to the Supreme Court of Canada (see our tribute on ABlawg). Justice Martin has now written her first decision for the Court, R v Boudreault, 2018 SCC 58 (CanLII) which was released in December 2018. The case concerns the constitutionality of victim surcharges, which are mandatory for persons who are discharged, plead guilty, or are found guilty of an offence under the Criminal Code, RSC 1985, c C-46, or the Controlled Drugs and Substances Act, SC 1996, c 19. Writing for a majority of the Court, Justice Martin’s judgment holds that these surcharges violate section 12 of the Canadian Charter of Rights and Freedoms, which protects against cruel and unusual punishment.

Our interest in this post is in exploring how equality infuses Justice Martin’s decision. Equality rights were not directly at issue in the case; rather, the constitutional challenge focused on section 12 as well as the guarantee of life, liberty and security of the person in section 7 of the Charter. Equality arguments were made by only two interveners (see here and here) and equality is mentioned explicitly only once in Justice Martin’s ruling (at para 28). Nevertheless, the discriminatory impact of the surcharge animates her entire judgment.

This leads us to reiterate a point we have made in previous writing (see e.g. here): section 15 of the Charter, the equality guarantee, is often overlooked in favour of other rights and freedoms as a result of the courts’ difficulties with and inconsistent treatment of equality rights. This has led to the analysis of other Charter rights – including section 7 and section 12 – that overlaps with equality, which muddies the content of these other rights. In turn, the lack of a robust equality jurisprudence perpetuates the tendency of parties and courts to avoid section 15. This is not necessarily a problem when other rights can be successfully invoked, as in this case, but it can be a problem when a successful claim depends on equality rights.

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