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Author: Jennifer Koshan Page 9 of 41

B.Sc., LL.B (Calgary), LL.M. (British Columbia).
Professor. Member of the Alberta Bar.
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Mandatory Dispute Resolution Coming Back to Alberta, But What About Domestic Violence Cases?

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On August 30, 2019

In Dispute Resolution, Family

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.

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

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On April 9, 2019

In Labour/Employment

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

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On February 22, 2019

In Uncategorized

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

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On January 7, 2019

In Constitutional, Criminal, Supreme Court of Canada

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

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On November 12, 2018

In State Responses to Violence

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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