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 Alternative Dispute Resolution in Family Law Disputes

By: Wanda Wiegers, Jennifer Koshan and Janet Mosher

PDF Version: Domestic Violence and Alternative Dispute Resolution in Family Law Disputes

Legislation Commented On: Bill 98, The Miscellaneous Statutes (Family Dispute Resolution) Amendment Act; Bill C-78, An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act

Access to justice in the family law sphere has received a lot of attention in recent years. One recurring theme is the large number of self-represented litigants and the need to explore mandatory out-of-court dispute resolution. Alberta does not currently mandate any type of alternative dispute resolution (ADR) for family law or child welfare matters (see here), but some other jurisdictions do. One issue that arises in this context is whether ADR is appropriate in cases involving domestic violence. In Saskatchewan, Bill 98, The Miscellaneous Statutes (Family Dispute Resolution) Amendment Act, will amend the Queen’s Bench Act, 1998, SS 1998, c Q-1.01, to require parties to participate in family dispute resolution (s 44.01(3)), but the parties may be exempted from that requirement if there is a history of interpersonal violence between them (s 44.01(6)(c)). We submitted a brief to the Saskatchewan Ministry of Justice in August 2017, prior to the enactment of Bill 98, which discussed the importance of considering domestic violence in this context (see here). The issue is once again alive as Parliament debates Bill C-78, An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act. In its current iteration, Bill C-78 would amend the Divorce Act, RSC 1985, c 3 (2nd Supp), to create duties (1) on parties to “try to resolve the matters that may be the subject of an order under this Act through a family dispute resolution process” (proposed s 7.3) and, (2) on legal advisers to encourage their clients to use family dispute resolution processes (proposed s 7.7(2)(a); Bill C-78 defines “legal adviser” as “a person who is qualified, in accordance with the law of a province, to represent or provide legal advice to another person” in any proceeding under the Divorce Act). Although the amendments recognize that the duties may not apply where “the circumstances of the case are of such a nature that it would clearly not be appropriate to do so,” they do not explicitly exempt cases involving domestic violence at present.

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Alberta’s Family Violence Laws: Intersections, Inconsistencies and Access to Justice

By: Jennifer Koshan, Irene Oh and Kristin McDonald

PDF Version: Alberta’s Family Violence Laws: Intersections, Inconsistencies and Access to Justice

Attached Summary Chart

November is Family Violence Prevention Month in Alberta. Law has an important role to play in prevention efforts through the ways it defines family violence, which may have educative and normative influences on the public. Law can also contribute to prevention in more material ways by providing remedies to enable victims to protect themselves and their children and by requiring perpetrators to seek counselling and other programming. But laws are only useful where they are accessible. This post describes and analyzes all of the Alberta laws and government policies pertaining to family violence, paying particular attention to the intersections and inconsistencies between them and how these might impact victims, perpetrators, children and their access to justice. While the map of laws in a single province is complex in itself, there are also federal laws relevant to domestic violence that add to this complexity – for example, for families seeking remedies under the Divorce Act, RSC 1985 c 3 (2nd Supp), and for First Nations victims of violence living on reserve, who may not have access to provincial protection order remedies (see here). The research set out in this post is part of a larger project on domestic violence and access to justice, funded by SSHRC and the Law Foundation of Ontario’s Access to Justice Fund, which is mapping legislation and government policies relevant to domestic violence across Canada. We will eventually make our research available on a website that is aimed at trusted intermediaries, those who provide services to victims and perpetrators in domestic violence cases. We also hope that this research is useful to litigants, lawyers, judges, policy-makers and other professionals who work in this area. The Alberta research is also available in a chart format that is attached above.

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“Marriage is not a rugby match”: Choking, Consent and Domestic Violence

By: Jennifer Koshan

PDF Version: “Marriage is not a rugby match”: Choking, Consent and Domestic Violence

Case Commented On: R. v Gardiner, 2018 ABCA 298 (CanLII)

Sexual violence – how it is perpetrated and how allegations are handled by those in power – is at the forefront of public consciousness at the moment as a result of #MeToo and, most recently, the Brett Kavanaugh confirmation hearings. But discussions about the legal definition of consent have been happening in Canada for a long time. The current definition of consent dates back to 1992 and was the result of a law reform process that included consultations with groups representing the interests of survivors as well as accused persons. Consent is defined in s 273.1 of the Criminal Code, RSC 1985, c C-46, as “the voluntary agreement of the complainant to engage in the sexual activity in question” and it is to be assessed from the complainant’s subjective perspective (R v Ewanchuk, [1999] 1 SCR 330, 1999 CanLII 711 (SCC)). Among several important principles that are well accepted in the case law (even if they are not always properly applied), consent cannot be implied or given in advance, can always be revoked, and must be present for each sexual activity in a particular encounter as well as the degree of force used for each activity (see e.g. Ewanchuk, R. v. J.A., [2011] 2 SCR 440, 2011 SCC 28 (CanLII); R v Barton, 2017 ABCA 216 (CanLII); leave to appeal granted, 2018 CanLII 11543 (SCC)).

How does this approach to consent change when the offence is one of domestic violence rather than sexual violence? For a majority of the Alberta Court of Appeal in a recent case, R. v Gardiner, 2018 ABCA 298 (CanLII), the answer is – wrongly, in my view – quite a lot.

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Alberta’s Family Violence Death Review Committee: Recent Reports, Recommendations and Reflections

By: Jennifer Koshan

PDF Version: Alberta’s Family Violence Death Review Committee: Recent Reports, Recommendations and Reflections

Reports Commented On: Family Violence Death Review Committee, Annual Reports and Case Reviews, available here.

Alberta’s Protection Against Family Violence Act, RSA 2000, c P-27 (PAFVA) was passed in 1999 and has as its primary focus the provision of protection orders for persons experiencing family violence. The PAFVA was amended in 2013 to empower the government to establish a Family Violence Death Review Committee (FVDRC) with the mandate to review fatal incidents of family violence and to advise and make recommendations to the government on preventing and reducing family violence (PAFVA, s 16). The FVDRC was established in 2013, and its most recent annual report, released in May 2017, provides statistics on the 132 family violence deaths in Alberta between January 2008 and December 2015 (see Family Violence Death Review Committee, 2015/2016 Annual Report at 12). In a series of more in-depth case reviews released between May 2017 and May 2018, the FVDRC makes several recommendations related to legislation, policy and legal processes that I review in this post. For a good resource on domestic violence death review committees in other jurisdictions in Canada and internationally, see the website of the Canadian Domestic Homicide Prevention Initiative.

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The Supreme Court of Canada’s Approach to the Charter’s Equality Guarantee in its Pay Equity Decisions

By: Jonnette Watson Hamilton and Jennifer Koshan

PDF Version: The Supreme Court of Canada’s Approach to the Charter’s Equality Guarantee in its Pay Equity Decisions

Case Commented On: Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux, 2018 SCC 17 (CanLII); Centrale des syndicats du Québec v. Quebec (Attorney General), 2018 SCC 18 (CanLII)

The latest decisions of the Supreme Court of Canada on s 15 of the Canadian Charter of Rights and Freedoms are the two companion pay equity decisions rendered May 24, 2018 in Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux, 2018 SCC 17 (CanLII) (APP) and Centrale des syndicats du Québec v. Quebec (Attorney General), 2018 SCC 18 (CanLII) (CSQ). The analysis of the Charter’s s 15(1) prohibition of discrimination on the ground of sex and s 15(2) protection of ameliorative programs from charges of reverse discrimination – the two-case, five-judgment spanning focus of this post – reveals a seriously fractured court reminiscent of the court that decided the so-called “equality trilogy” of the mid-1990s. It reveals the lack of consensus at the end of Beverley McLachlin’s term as Chief Justice and after a significant turnover in members in the past four years, with the three most recently appointed judges who heard these appeals dissenting. The issues this post addresses – and we address them only briefly in this forum – are: (1) What is the current legal test for discerning a breach of s 15? (2) What are the contentious points on which the current justices disagree? And (3) What might these pay equity decisions mean for the future of equality law in general? Unfortunately, there is enough disagreement about the answers to the first two questions that this lengthy post will only discuss the relevant law and not go into detail on its application to the facts in this case (except in the use of comparators).

An earlier ABlawg post by Jennifer Koshan, The Supreme Court of Canada’s Pay Equity Decisions: A Call to Action for Alberta?, explores the implications of these two decisions for the Alberta government’s pay equity obligations. The context and facts of both decisions are detailed in that post, but a brief recap to set the stage for the s 15 analysis is in order.

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