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omen and the Law in Alberta

6th Edition, 2005 Calgary Association of Women and the Law The information contained in this publication provides general legal information only and is not intended to replace expert advice of any kind. The contents of this publication in whole or in part may only be reproduced with the written permission of the Calgary Association of Women and the Law. The Calgary Association of Women and the Law, a caucus of the National Association of Women and the Law, is a non-profit organization incorporated under the Societies Act of Alberta. This publication is funded by the Alberta Law Foundation.

Alber ta Law Foundation


F

oreword

This booklet is the result of the ongoing commitment of the Calgary Association of Women and the Law to improve the status of women by informing the community about laws that affect women and by providing information on the resources available. Information is the power. Women with knowledge are better able to seek what rightfully belongs to them, and to make free, informed, choices. This booklet is meant to be a guide only. It is intended to answer commonly asked questions and provide general information on certain legal matters. After reading the booklet, if you have any questions about your legal rights, please consult a lawyer. If you do not have a lawyer, call Lawyer Referral Service which is listed in Legal and Community Resources at the end of the booklet. Remember, this booklet is meant to be a guide only; it is not intended to replace expert advice of any kind. This publication is a revision of a booklet called Women and the Law: Your Rights In Alberta, published in 1978 and revised in 1983, 1985, 1989, and 1995. The text for the 1995 publication was used as a basis for research and in some cases remains unchanged. Calgary Association of Women and the Law July, 2005

Acknowledgments This booklet could not have been published without the generous support of its founder, The Alberta Law Foundation. Neva Ramsay conducted the legal research needed to begin the revisions to the booklet. As well, board members of the Calgary Association of Women and the Law were involved in the research and editing. They Are: Marija Bicanic and Tess Jones.


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able of Contents

Access to the Legal System...... 4 Women as Victims of Crime...... 11 Women and the Criminal Justice System............ 17 Women’s Rights......................... 30 Women, Money, and Property... 47 Women and Work....................... 67 Women and Marital Status........ 75 Women and Children................. 89 Women and Health.....................105 Legal and Community Resources...................................113 Glossary...................................... 118 Women and the Law 6th Edition, 2005

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LEGAL HELP FOR WOMEN

How Do I Choose A Lawyer? There are two things to consider when choosing a lawyer: (1)

It is important that you find a lawyer who has a good record in the area in which you require assistance; and

(2)

It is just as important to find a lawyer who is sensitive to your needs and in whom you have confidence.

One way to find such a lawyer is to ask other people who have experienced similar legal problems for their recommendations. Remember though, a lawyer who has successfully handled a friend's house sale may not be the one to handle your divorce. You may also call Lawyer Referral Service at the telephone number listed in the Appendix. Through the Lawyer Referral Service, you will be given the names of three lawyers who have an interest in the area of law in which you require assistance. You may make an appointment with one or all of the lawyers but you must tell them that you got their names from Lawyer Referral Service. The lawyer will see you to discuss your legal problem and will not charge anything for the first 30 minutes. After that, the lawyer will charge legal fees so make sure that you time the interview and make good use of your 30 minutes. Be prepared for your first appointment with any lawyer. Make a list of questions. You will want to know how much experience the lawyer has had in handling cases like yours, how much the entire process will cost and how you can arrange to pay, and how much will be charged for phone conversations. Ask the lawyer what your legal rights are, whether you have a strong case and whether it is worth pursuing. If you do not understand something, say so and ask the lawyer to explain the process in clear simple language. If you are not satisfied with the lawyer after the initial appointment, or at any time during the handling of the case, find another lawyer. Once a lawyer has agreed to take on a case and has done work on your file, the lawyer does not have to give you the file until the entire bill has been paid. If your lawyer does not send you a letter confirming the arrangement for fees, you should send one confirming the arrangement to the lawyer. Keep a copy of this letter for your own records. If the terms in the letter are not identical to your or the lawyer's understanding of the arrangement, the person who is in disagreement should contact the other person immediately to straighten out the matter. If your lawyer does not bill you for her services on a regular basis, and if the matter is carried on for a long period of time or becomes more complicated than expected, you would be wise to contact her and ask what your costs are to date. This will give you the chance to keep track of the legal fees and to decide if the matter is worth continuing. Make notes during the appointments with your lawyer. Most lawyers will make notes of the things that are said during an interview or phone call. Often you may feel frightened or emotionally upset and may not remember all of what was said to you. Your notes will help to jog your memory. Always keep in mind that the lawyer is working for you. You hired the lawyer and you are paying her. You have the right to know what she is doing on your behalf and to have input into any decisions that are made on your behalf. What if My Lawyer Charged Me Too Much? If there is a dispute over your lawyer's bill for legal services, either you or the lawyer may have the bill reviewed by an independent third party. This review process is called "taxation". The third party is called a taxation officer and is a deputy of the Court of Queen's Bench who has been specially appointed to handle fee complaints. There is a $100 fee for this process. To tax a lawyer's bill, you must make an "Appointment for Taxation" with the Clerk of the Court of Queen's Bench. You should fill out an Appointment for Taxation form with your name and the lawyer's name, the date and the time of the appointment, your address and the necessary information required. Generally, the Clerk will give you a sample Appointment for Taxation to use as a guide when filling out your own form. You must make copies of the Appointment form and the lawyer's bill and file these at the office of the Clerk of the Court of Queen's Bench. You will then have to "serve" a copy of the Appointment and the lawyer's bill on your lawyer. Service on your lawyer can be done in one of three ways: (a)

Mail a copy of the documents by double registered mail and file an Affidavit of Service at the office of the Clerk of the Court. You must attach the original Appointment and the completed “proof of service� form (which you must obtain from the post office) as exhibits to your Affidavit. You may swear your Affidavit of Service in front of one of the Commissioners for Oaths at the Clerk's Office.

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(b)

(c)

Drop the Appointment off at the lawyer's office and have someone at the office sign and date the back of the original Appointment to show that service was made. You should bring the signed original Appointment to the taxation so that you can show the taxing officer that you have proof of service. Have a process server serve the document for you. The process server will prepare and swear an Affidavit of Service which will then be given to you so that you can show the taxation officer that you have proof of service. Since the process server will charge you for serving the documents and preparing the Affidavit, you should find out the cost of employing a process server.

Service must be completed at least five days before the taxation hearing. To calculate the five days, you do not count: (i) the day on which the lawyer receives the Appointment, (ii) the day of the hearing, (iii) weekends, or (iv) holidays. If you paid the lawyer's bill more than six months ago, or if the bill was sent to you more than a year ago, permission of the court is needed before either you or the lawyer may have the bill taxed. The taxation office of the Court of Queen’s Bench will be able to assist you with the procedure that you must follow to get the permission of the court. You should bring to the taxation hearing all relevant documents and correspondence that you might wish to use in support of your case. Be prepared to give the taxation officer your arguments as to why you feel the lawyer charged you too much. You and the lawyer will each have a chance to present your own side of the story. The taxation officer will then make a decision, depending on the evidence, to leave the bill as it is or to reduce it. If you do not agree with the decision of the taxation officer, you may appeal the decision to a judge but your Notice of Appeal must be filed within 10 days of the date when you are notified of the taxation officer's decision. The taxation hearing is recorded in the event there is an appeal by either party. What If I Have Other Complaints About My Lawyer? If you have other complaints about the way your lawyer handled your case or the manner in which you were treated, you may make a complaint to the Law Society of Alberta. Your complaint must be in writing. The Law Society will send a copy of your written complaint to the lawyer and give the lawyer an opportunity to answer the complaint in writing. The Law Society may recommend that you and your lawyer attend mediation at their office and attempt to reach a solution to the problem with the assistance of one of their trained mediators. If mediation is not successful, the Law Society will review your complaint and the lawyer's reply. If your complaints are valid, there will be an investigation into the matter which could have very serious consequences for the lawyer. The Law Society will advise you of the outcome of its investigation and whether or not the matter will be investigated further.

LEGAL AID

What If I Can't Afford A Lawyer? If you feel that you need a lawyer but cannot afford to retain one privately, then you may apply for legal aid. If your case, whether criminal or civil, is the kind of matter covered by Legal Aid, and if you fall within the financial guidelines for legal aid, then your application will be approved. Contact the Legal Aid office closest to you for information. Telephone numbers are provided in the back of this book. Legal Aid officers also make regular visits to remand centres and correctional and psychiatric institutions to take applications. You may arrange for an interview by requesting it from the staff in these places. If there is a Legal Aid office in your area, and if you are not in custody, then you should call the local office to arrange an interview. When you go to the appointment, bring with you any legal papers you may have been served with and all of the documentation that you have regarding your financial situation, such as last year's income tax return, pay stubs, loan statements, proof that you are receiving Social Assistance, and so on. The Legal Aid officer will want to know how much money you earn, how many dependents you have, how much money you owe and the value of any property which you may own, for the purpose of deciding whether you qualify financially. When Should I Apply? You should apply as soon as you are charged with a criminal offence. If you are under investigation by the police and charges Women and the Law 6th Edition, 2005

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have not been laid, you may wish to consult a lawyer about your situation. In a civil matter, you should apply as soon as you have been served with legal documents by someone else, or as soon as you see the need to bring a legal action against someone else. If the matter is urgent, as in the case of a Restraining Order or Emergency Protection Order, indicate this when you make your appointment. What Can I Do If I Am Refused Legal Aid? If your application is refused by the Legal Aid staff, you have the right to appeal the refusal to the Regional Legal Aid Committee for your area. Your appeal must be in writing and delivered to the Legal Aid Office which refused you within 30 days of the date on which you were refused. It is often in your best interest to make a personal presentation to the Regional Committee. You must make sure to request this in your written appeal in order that you will be notified of when and where to attend. If the Regional Committee rejects your appeal, you may then appeal to the Appeals Committee of the Board of Directors. The decision of the Appeals Committee is final. Can Legal Aid Be Cancelled? Legal Aid may be cancelled when it appears that information given in the application was inaccurate, if you did not abide by the conditions for coverage or if there was a material change in your financial circumstances since legal aid was granted. You will be notified in writing if the coverage is to be cancelled and you have the right to appeal. What Matters Are Covered By Legal Aid? Legal Aid is available for all serious offences including those under the Criminal Code, Narcotic Control Act and Youth Criminal Justice Act. Serious offences are known as indictable offences and conviction for such an offence generally will result in imprisonment and/or a large fine. In less serious matters, known as summary conviction offences, legal aid is only available if a conviction would mean that you would go to jail, lose your means of earning a living or there are some other special circumstances involved such as a complicated and important legal issue. Some examples of less serious matters are traffic violations, breaking city or town bylaws or criminal charges such as causing a disturbance or theft under $5,000. Normally, in such matters, the penalty is only a fine unless there are other circumstances (for example, you are a repeat offender or your conduct showed that you have no respect for the law) which would justify a sentence of imprisonment. The Legal Aid staff will be able to tell you if your problem will be covered by Legal Aid. Does Legal Aid Cover Civil Cases? Legal Aid may be available for any civil case within the jurisdiction of the courts. There are limitations, so check with the Legal Aid Office to find out what coverage is available. Family Law Project In 200l, Legal Aid commenced a pilot project to deliver family law services through salaried staff lawyers operating out of Calgary and Edmonton. Any request for family law services in both these cities is referred to the Family Law Office (FLO). Clients residing outside these centres will continue to be referred to lawyers in the private bar, although you may request representation through the Family Law Office. Is Legal Aid Available For Criminal And Civil Appeals? Legal Aid may be available for appeals from a decision of a court. There are special rules of eligibility; check with your local Legal Aid Office. Is Legal Aid Free? Services provided by Legal Aid are not free. The fees paid by the Society are substantially less than private fees because lawyers who accept Legal Aid cases do so at less than normal fees. When your case is finished, the Society will normally seek repayment. No person is refused Legal Aid coverage only because she may not be able to repay the money later. If it would cause real hardship for you to make the repayment, the Society will work out terms which will not put too great a strain on your resources. Occasionally, you may be asked to provide some sort of security for repayment such as signing a promissory note or a mortgage at 0.0% interest. If you fail to meet the requirements set by the Society, your coverage may be refused or cancelled. Women and the Law 6th Edition, 2005

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Does the Legal Aid System Differ for Young People? Young people under 18 charged with offences under the Youth Criminal Justice Act are entitled to legal aid regardless of their parents’ income. In some cases, where the parents or youth are well off, Legal Aid will initially refuse the application, and the youth will then have to ask the Youth judge to order the appointment of a lawyer and send the matter back to Legal Aid. In Calgary and Edmonton, young people who receive legal aid are referred to the Youth Criminal Defence Office and, except for very rare circumstances, must use one of the lawyers working in that office. (This differs from the adult system, where you can choose any lawyer who accepts Legal Aid cases.) Even for young persons, legal aid is not free. When the case is concluded, the young person receives an account for the services provided by lawyers appointed by the Legal Aid Society. These accounts are generally for much lesser amounts than those of lawyers retained privately, and the Society is usually sensitive to the financial situation of the young person when attempting to collect payment.

OTHER LEGAL SERVICES

Calgary Legal Guidance is a service provided by lawyers in the Calgary area to persons who qualify because of their low income. Free legal advice is given but you must make an appointment beforehand. The interviews are usually held during the evening. The lawyer will give you advice on how to handle your problem, what the law means and how it affects your situation. In certain special circumstances, the CLG staff lawyer (who may not be the lawyer you met with initially) may attend with you in court. Calgary Legal Guidance also provides free practical legal information on tapes, accessible 24 hours a day by telephoning Dial-a-Law. (See Appendix for telephone numbers.) The Social Benefits Advocacy Program assists low-income clients to obtain and maintain social benefits such as Social Assistance, Assured Income for the Severely Handicapped (AISH), WCB, EI, CPP and any other social benefit. The Court Preparation and Restraining Order Program provides legal and emotional assistance to victims of domestic violence by working with clients to prepare them for the court experience. Retraining Orders and Emergency Protection Orders can also be obtained through this program.

Edmonton Centre for Equal Justice is a community based program that exists to provide legal assistance, representation, information in areas of civil and administrative law and referral for persons with low income that would not otherwise have access to such services. Individuals who cannot afford to retain a lawyer and who may face cultural, disability, literacy and other barriers to accessing legal assistance receive support at no cost in matters such as Landlord and Tenant, Employment Issues, Human Rights, Debtor and Creditor, and Immigration Law. Through social benefits advocacy, the ECEJ supports individuals who require the expertise of a representative at appeals. ECEJ offers free legal services at law clinics every Tuesday and Wednesday evenings from 6 to 9 PM. Clients make an appointment with the Intake Coordinator. The clinics run with the support of volunteer lawyers who provide summary legal advice, referral to other agencies as appropriate or a recommendation to ECEJ’s legal team for further assistance. Clients who face issues that cannot be resolved through the legal clinic, or people with emergent situations who were not able to attend the clinic, can receive further legal services from our Staff Lawyer and Legal Assistant. Services that include: direct legal representation, assistance with preparation of legal documents, negotiations or mediation and court/hearing preparation. The ECEJ recognizes that legal problems can arise out of or contribute to the social and economic circumstances of poverty. The Outreach Worker, a Registered Social Worker, supports vulnerable clients to access housing, emergency financial aid, government services, community referrals and provincial and federally funded social benefits programs. (See Appendix for telephone numbers.)

The law schools at The University of Calgary and The University of Alberta both offer free advice in legal matters to those with low income. Assistance includes information and representation in the civil, criminal, traffic and family divisions of the Provincial Court of Alberta. The services are provided by law students who are supervised by practicing lawyers.

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Native Counselling Services of Alberta offers information, guidance counselling and referral services to Native people charged with offences. Courtroom assistance and speaking on your behalf are also provided.

Elizabeth Fry Society of Calgary will help women (and men) in adult and youth court by providing legal information, support and assistance throughout the court process. The Society offers a prison program (including short-term counselling and practical assistance) for women during their incarceration and upon release. Elizabeth Fry also offers: The Bridges Program, pre-employment counselling for women who have had problems with the legal system or are at risk of having problems with the legal system. The Aboriginal Healing Circle, a traditional aboriginal treatment for women dealing with abuse and trauma issues.

The John Howard Society offers assistance and programs for men and women, youth and adult who are at risk of conflict or currently involved in the Criminal Justice System. Workers can assist you with problems and help you look for a job, write a resume, or improve your education. They can also help you find housing and clothing. The Crime Impact Program for youth aged l2-l8 focuses on raising awareness of the impact of crime on individuals, families and the community. The Youth Advocacy and Support program provides support and advocacy services. Bedford House, a half-way house provides parole supervision for special needs offenders. Berkana House provides apartments for women on day parole who need help to reestablish themselves in the community. Emergency Intake and Referrals provides assistance to those who need help integrating into the community. They are given assistance through direct service and/or community referrals. Services include clothing and furniture, referrals, resume preparation, faxing, personal counseling, as well as job targeting and skill development. The Learning Enhancement Education Program provides employment training. The Literacy Program provides free one on one tutoring and The Office, Career and Technology Program provides basic computer training in MS Word, Excel, Power Point, Windows 98, keyboarding skills, resume preparation, writing and job search techniques.

GOING TO COURT

There are two types of law in Canada. Civil proceedings are those which concern matters between two or more private individuals or corporations. Criminal proceedings are those matters between a defendant (i.e., the accused person or business), and the Crown (i.e., the State). What Is Duty Counsel? Duty Counsel is a lawyer provided by the Legal Aid Society who is present at the provincial criminal courts in most centres as well as provides assistance to victims of abuse in family law matters in provincial family courts. The Criminal Law Duty Counsel is there to give advice to people before court. The Duty Counsel may speak on your behalf in court or assist you with entering a plea, making a bail application, seeking an adjournment or speaking to sentence. The Duty Counsel's services are free to anyone who needs immediate assistance; your financial circumstances are not material. Duty Counsel will also assist persons who are in custody. You should try to see the Duty Counsel before court begins, but if your case is called and you have not had a chance to see him or her, ask the judge to allow you time to speak with the Duty Counsel before dealing with your case. The Family Law Duty Counsel is also there to give advice to people before court and to assist victims of family violence to obtain an Emergency Protection Order. Calgary Legal Guidance provides a lawyer to act as Duty Counsel in Court of Queen’s Bench to assist unrepresented parties in family law matters. Am I Entitled To An Interpreter In Court Proceedings? If you are charged with a criminal offence and you are unable to speak English, the judge should be told at the time of your first appearance in court that you will require an interpreter, and one will be provided at government expense. If you are French-speaking, you may have the matter dealt with in the French language. Since many judges, Crown counsel, defence lawyers, court reporters and court clerks do not speak French, (or any language other than English), arrangements will have to Women and the Law 6th Edition, 2005

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be made to have French-speaking personnel available for your hearing. Before the enactment of the Canadian Charter of Rights and Freedoms, there was no legal requirement that an interpreter had to be provided in civil proceedings. Section 14 of the Charter guarantees that any party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted, or who is deaf, has the right to the assistance of an interpreter. This section does not say that the interpreter must be provided free of charge however. If you are involved in legal proceedings and you need an interpreter, and if you believe that some of your rights or freedoms will be denied because you cannot afford one, you should ask the court to appoint an interpreter. The judge will be able to look at your particular situation and decide if an interpreter should be provided at government expense. Any requests for an interpreter should be made early in the proceedings so the court and other parties are not inconvenienced by any delay.

LIMITATION OF ACTIONS

What Are Limitation Dates? Limitation dates are deadlines or time limits imposed on you by law and which limit the amount of time you have to start legal proceedings, file appeals or make formal complaints. These deadlines are often set out in individual statutes, regulations or bylaws, otherwise, the Limitation of Actions Act sets out the deadlines. The length of time before your right to start or continue proceedings expires will depend on the type of problem that you have. For example, you have 30 days from the day that you receive your property tax assessment from the city to file a notice that you wish to appeal the assessment. Another example: if someone does not pay the money that she owes to you, you have two years from the time that the debt is due or she refuses to pay, to sue for the amount owed. There are also limitations dates which affect certain criminal matters. Speak to a criminal lawyer if you have questions about such limitation dates. One exception regarding limitations is the "reasonable discoverability" exception. This means that the limitation period does not begin to run until the plaintiff (the person bringing the suit) could have reasonably discovered the material facts upon which their case is based. Applying this principle in a sexual abuse case where the plaintiff has suffered a memory block over a number of years provides an example. Until the memories of abuse surface, the plaintiff cannot possibly appreciate that she has a cause of action. Are Limitation Dates Important? Limitation dates are very important because if the time passes before you start your action, you will be prevented from making your claim. For example, if you obtain a Divorce Judgement from your spouse, you have two years from the date of the judgment to start your action under the Matrimonial Property Act for a share of the property that you acquired during your marriage. If you do not start your action before the two-year period is up and, if there is no fraud involved, you will not be able to obtain assistance under the statute from the court. How Do I Know If Time Is Running Against Me? If you think that you may have a legal action against someone or if you wish to appeal a decision made against you, contact a lawyer or Legal Aid office to find out how long you have before your right to take action is gone. Don't delay; always leave plenty of time to make sure that all necessary documents can be prepared and necessary information can be obtained.

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WV

omen as ictims of

C

rime

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SEXUAL ASSAULT

What Is Sexual Assault? The term "rape" no longer appears in the Criminal Code; instead, a new category of sexual assault has been created. "Assault" is defined as the intentional application of force without the victim's consent. But when does an assault turn into a "sexual" assault? The courts have struggled with the definition, and the Supreme Court of Canada has concluded that there is no one test, such as, for example, whether direct genital contact was involved. Rather, courts will look at all of the circumstances of the assault, including the words and gestures used, whether the motive was sexual gratification, the nature of the contact, and what parts of the body were involved. With the change in terminology, the focus has moved from the sexual aspect to the violent nature of the crime. Unlike rape, sexual assault can be committed by women as well as by men and may be committed by one married spouse against the other. The victim may be female or male. The Criminal Code provides for three levels of sexual assault. Under Section 271, the first level, the accused may be charged either by summary conviction (a less serious offence), which has a maximum sentence of 18 months imprisonment or a $2,000 fine or both; or by way of indictment, which has a maximum sentence of 10 years of imprisonment. Under Section 272, the second most serious level of sexual assault, the maximum penalty is 14 years imprisonment. A charge may be laid under this section if a weapon is used, threats to cause bodily harm to someone other than the victim are made, the victim suffers bodily harm or more than one person is involved in the commission of the assault. The third level, aggravated sexual assault, is defined in Section 273. Aggravated sexual assault involves the wounding, maiming, or disfiguring of the victim, and carries a maximum sentence of life imprisonment. Because the law allows for the offence of sexual assault to be committed against both men and women, it will not be necessary for the Crown to prove that vaginal penetration by a penis occurred. Oral and anal intercourse without consent comes within the scope of sexual assault offences. Under the law, the victim's past sexual history may be introduced only in certain circumstances. The accused's lawyer must give written notice that he/she intends to introduce the victim’s past sexual history. The judge, in closed court proceedings, must then determine whether such evidence is used merely to rebut evidence put forward by the Crown Prosecutor to establish the identity of the accused, or to reveal that more than one person committed the offence and the victim was intimidated by the first assailant and thus consented to the second assailant. For example, a woman is sexually assaulted by one man and another man comes along who does not use force, but the woman goes along with the sexual intercourse because she is too afraid to say no. Generally, the main issue in a sexual assault case will be whether or not the victim consented to the act. Obviously, if the victim consented, then no crime has been committed. Consent is not valid if it has been obtained by: use of force against the victim or someone other than the victim; threat or fear of the use of force against the victim or someone else; fraud; or a person in authority, such as an employer, teacher, or parent who uses this authority to obtain consent. What Should I Do If I Am Sexually Assaulted? If you are sexually assaulted, call the police or a Sexual Assault Centre. (In Calgary, the sexual assault centre is called Calgary Communities Against Sexual Abuse or CCASA). A Sexual Assault Centre will generally provide moral or emotional support, will call the police for you if you wish, will send someone to be with you, or will accompany you to the police station or the hospital. A friend could serve this same function; however, the centre volunteers are trained to assist sexual assault victims and will explain what you can expect to happen. The police recommend that you do not do anything that will destroy any evidence of the attack. Do not take a bath, douche, or change your clothes. If you have been forced to perform oral sex, do not rinse your mouth or drink anything. Do not wash your hands or file your nails, since there may be a sample of the attacker's skin underneath your nails. If you report a sexual assault to the police, you will be questioned about the assault. The volunteer from the sexual assault centre may remain with you during the questioning, if you feel that her support would help. You will also be taken to the hospital for a medical examination to treat any injuries you may have suffered during the attack and to gather evidence. You will be given an internal examination and have swabs taken to test for semen. Your pubic hair will be carefully combed to extract any hairs that may identify the ATTACKER. Clippings will be taken from your nails to examine for skin traces. You will be thoroughly examined for any evidence of bruising or injury. These procedures are necessary if the attacker is to be successfully prosecuted. You should also Women and the Law 6th Edition, 2005 12


ask the doctor about a pregnancy test, a “morning after” pill, and tests for HIV and venereal disease. Usually the doctor will warn you of the necessity of these tests; if she does not; do not hesitate to ask. In Calgary, you are usually taken to the Rockyview Hospital or requested to have someone take you there. The Calgary Sexual Assault Support Team located there consists of doctors, nurses and sex crime police. They are a group of professionals from medical and police services who do most of the assessments of sexual assault victims in Calgary. Their assessments include domestic violence, suicide risk, safety and appropriate accommodation. In Calgary, CCASA offers a 24 hour crisis service (the telephone number is found in the Appendix), short term crisis counselling and information nights, an anonymous drop-in for victims, those assisting victims and support workers. CCASA offers also offers support services to male victims of sexual assault. What Happens If I Go To Court? If the attacker is caught and charged, you will be the main witness at his trial. You will have to testify at the preliminary hearing (if the Crown proceeds by way of indictment) as well as at the trial. Many months may pass between the attack and the trial, and you may find it difficult to remember all the details. It will be necessary for you to give detailed evidence about the incident. As pointed out above, the major issue in most sexual assault trials is whether or not the woman consented to the act. The accused's lawyer will try to convince the court that you did give consent. The lawyer may only question you on your past sexual activities if she meets the requirements already set out above. You might feel that it is you, and not the accused, who is on trial. This is a common feeling among many victims of sexual assault. The accused is not required to testify and may not. It is up to the prosecution to prove guilt beyond a reasonable doubt, and not for the accused to prove innocence. Only through your testimony, and any evidence that may support it, can the accused be convicted. Do I have To Testify? Occasionally, a witness does not want to testify in court proceedings. This can happen for many reasons, but generally, in sexual assault cases, a witness is afraid to testify for fear of retaliation by the accused or someone else. Without the testimony of the witness, there may not be enough evidence to convict the accused. A witness who refuses to testify because her testimony will indicate that she was involved in the commission of a crime should ask the court for protection from prosecution under the Charter and the Evidence Act. If a witness does not want to testify because of fear of the accused, the Crown Prosecutor can take whatever reasonable precautions are necessary to protect the safety of the witness. If the court does not excuse the witness from giving evidence, the witness must testify. If the witness does not testify, there may be a hearing to determine if the witness can show an acceptable legal reason to the court why the testimony need not be given. If the court decides that testimony must be given and the witness still does not testify, the witness will be held in contempt of court. The witness can be imprisoned for a set period of time or until the testimony is given. There is a dispute between those who believe it is unjust to punish a frightened witness who refuses to testify and those who believe that the interests of the public and the legal system require such testimony at any cost in order to bring a dangerous offender to justice. Without crucial testimony, a dangerous offender may be released and will be free to commit the offence again. If you are called as a witness in any legal proceedings and you are not willing to testify, you should see a lawyer or contact Legal Aid to find out your rights and duties as a witness. Are There Any Other Legal Proceedings I Can Take? You may sue the attacker in civil court for damages, just as you would sue someone who damaged your car in an accident. To initiate a civil action, you should hire a lawyer. This may be a fairly expensive procedure and there is no point in it unless the attacker has assets from which he could pay damages. Damages in a civil suit are compensation for any losses or expenses arising out of the attack; for example, ruined clothing, lost wages, or medical expenses, as well as compensation for your pain and suffering. If you were injured as a direct result of a violent crime in Alberta you may be eligible for an award under the Victims of Crime Act. The Financial Benefits Program created by the Act, provides direct assistance, with a one-time financial benefit based on the severity of the victim’s injuries. The benefit amount is set in the regulation to the Act. For further information, refer to the section of Victims of Crime Financial Benefits below. A volunteer from a sexual assault centre will help you make out a third party report, if you wish one. This is a report to the Women and the Law 6th Edition, 2005 13


police about the incident and it contains all the details about the attack except your name. No charges will be laid as a result of the report, but these reports are very helpful to the police when they investigate other crimes of sexual violence. Some Facts About Sexual Assault Many women who have been sexually assaulted feel that perhaps they are somehow to blame. Studies indicate that a woman's age, appearance or dress have little to do with the assault. It is primarily a crime of violence, not of sex. A woman is sexually assaulted because she happens to be vulnerable and to be in a certain place at a certain time. Studies also indicate that a substantial proportion of all sexual assaults against women are committed by someone that the victim knows. It may be a friend, an uncle, a neighbour, or even a date. This is one reason why many attacks go unreported; a woman may be unwilling or too embarrassed to testify against someone she knows. Sexual assault is an experience that may leave a victim emotionally and physically scarred. Emotional help is often necessary even years after the event. Sexual Assault Centres offer counselling and will also refer victims to other agencies or counselling services. A woman who lives in an area where there is no centre should ask her doctor to refer her to a counselling service.

BATTERED WOMEN

A man, who beats a woman, whether it be his wife, his girlfriend, or his common-law partner, has committed a criminal offence. A woman who is subjected to assaults by her husband or boyfriend has the right to be protected from such violence. However, the right to be protected can only be enforced if a woman is prepared to seek help. There are many courses of action available to a woman who has been beaten and only she can decide which option is best for her. Where Can A Battered Woman Get Help? If you are in immediate danger, your first concern will be for the safety of yourself and your children. You can call the police by using the emergency number (911). Make it clear to the police that you are in danger of immediate physical violence. This will speed up their response to your call. You should be aware that the police may charge your husband with assault (a criminal offence). In cases of domestic violence, the choice of whether criminal charges should be laid used to be the responsibility of the individual woman. This is no longer the case. The policy of the police is to lay charges if they believe an assault has occurred or is likely to occur. If the police lay the charge, the charge can only be dropped at the discretion of the Crown Prosecutor. Some police departments, including the City of Calgary, have crisis units consisting of counselors who will attend after the police have made a preliminary investigation. It is within the discretion of the police to call in a crisis unit worker, but you may request that one be called to assist you. The crisis unit worker can provide referrals to appropriate agencies and follow-up counselling. If you choose not to call the police and do not want to stay in the house, get in touch with one of the women's emergency shelters. They will provide you and your children with emergency accommodation (usually for up to 2l days). They also offer counselling, clothing, day care, and will assist you in getting legal help and Social Assistance if necessary. If there is no shelter in your area, you can also get emergency assistance from the Department of Social Services to pay for temporary accommodation. (See listing in the chapter under Legal and Community Resources.) When you leave, take enough clothing for a few days, your house keys, medication and identification. If you are unable to take anything, the police may go back to the house with you a day or two later while you collect the basic necessities that belong to you and your children. What Can I Do If The Police Refuse To Charge My Husband? If the police do not charge your husband, you may lay the charge yourself. This involves laying a private information before a Justice of the Peace. An information is a sworn statement which states that you have reasonable and probable grounds to believe an offence has been committed. You will be required to provide proof of the attack if the case goes to trial; therefore, you should request that the police make a written report, seek medical attention for any cuts etc., and have the doctor record Women and the Law 6th Edition, 2005 14


any evidence of the attack. Before you start with criminal charges, you should be sure that you are prepared to follow through with them. Even if convicted, the man may only receive a fine, probation or a discharge, unless he has a previous record of violence or you were seriously injured. How do I Protect Myself From My Partner's Physical Abuse? If you are concerned that your husband partner or boyfriend will subject you to further violence or if he is harassing you, you may apply for an Emergency Protection Order (EPO). The police or RCMP may make application for an EPO 24 hours a day, seven days a week. You may also make application for this order at Provincial Court, Family Division. You would be given advice and assistance to help you complete the forms. Once you obtain the Order, your partner will be advised to stay away from you. The Order must be reviewed at a hearing at Court of Queen’s Bench within seven days from the day the order was first granted. The documents are filed at the Court of Queen’s Bench. The Court of Queen’s Bench automatically forwards the documents and a transcript of the hearing to Calgary Legal Guidance (CLG). Usually, a lawyer from CLG will contact you by couriered letter, at the earliest time possible, to advise that she is available to assist you at the EPO hearing at Court of Queen’s Bench, free of charge and to seek your instructions. The CLG lawyer also provides information about community services available, discusses safety issues and ensures service of your Order has been completed. She also provides further legal advice that would be appropriate to your circumstances. This lawyer is also Duty Counsel for all claimants in the Calgary area granted Emergency Protection Orders pursuant to the Protection Against Family Violence Act unless there is a conflict of interest, in which case you would be advised to contact Legal Aid immediately, and a lawyer would be assigned by Legal Aid to assist you at the review hearing. If there is a breach of the Order by your partner, the CLG lawyer will attend court with you even months after the “review”, if you do not have a lawyer and sometimes even if you do. A second remedy for your safety would be a Restraining Order. This procedure is best used if you have already retained your own lawyer. A Restraining Order must be obtained in combination with another legal action such as a matrimonial property action, a divorce action or a civil action. It is possible to obtain other relief at the same time you apply for a Restraining Order such as custody of your children or possession of your home. When you get either Order, you or your lawyer must file it with the police. A copy must be served with an Affidavit of Service. In case of breach of the Order, the police will arrest your partner and keep him in police cells until he can be brought in front of a judge, which may take a night or a weekend. The judge may impose a fine, or a jail term, or may simply give him a reprimand. If you do obtain a court Order that requires your partner to stay away from you, make sure that you also comply with the terms of the Order. Once the Order has been made, you should not ignore its terms and allow your partner to have contact with you. If you do, you are encouraging your partner to break the law but, more importantly, you are ignoring the help which the court has given you. Should you reconcile with your partner or decide that you do not need the Order any longer, ask your lawyer to apply to the court to remove it. In this way, if you need another Order in the future, the court may be more sympathetic to your situation. Generally, such Orders are good for a limited period of time, for example, 90 days, and you must apply to the court if you need to extend that period of time. A third remedy available to you is a peace bond. This is simply a promise made by your partner to the court to behave and keep the peace. In order to get a peace bond, you will have to lay a private information at the police station. Both you and your partner will have to appear in court to testify. It can take up to six weeks to obtain a peace bond and the police are more reluctant to enforce them than an EPO or Restraining Order. A further remedy, available to legally married persons only, is an order under the Matrimonial Property Act for exclusive possession of the matrimonial home. This could include an order forbidding your husband from coming to or entering the home. Such an Order can apply to both owned and rented property. When making a decision to award one spouse exclusive possession, a judge will consider the availability of other accommodation within your means and your husband's means, the needs of your children and both of your financial positions. A “no contact” Order can be imposed by the police after an assault charge has been laid. A “no contact” Order is usually a condition of the accuser’s release: in other words, he will be charged and released provided he not have contact with the person he abused. If the “no contact” Order is breached, the accused may be remanded to sit in jail until his next court appearance. None of these remedies are ironclad guarantees of your safety. How Can I Support Myself If I Leave My Husband? If you have decided to leave your husband but are unable to support yourself and your children after you leave, you can apply for welfare. Funds will be provided for food, clothing and shelter, as well as training if you have no marketable skills. You Women and the Law 6th Edition, 2005 15


should also apply immediately for interim custody of your children. If you are married, and if you do not have a court order or agreement for custody of the children, your husband could simply grab the children from you, or could even lay kidnapping charges. (The consent of the Attorney General will be needed before the charge is laid.) The only defence to these charges is that the children were taken to remove them from a situation that was dangerous to them. Do not delay seeking interim custody of your children. This can be done through Family Court by yourself or through the Court of Queen's Bench by your lawyer.

COMPENSATION FOR CRIMES

Who Is Eligible? Victims of violent crimes may be eligible for financial assistance under the Victims of Crime Act, Financial Benefit Fund which provides direct assistance with a one-time financial benefit based on the severity of the victim’s injuries. This benefit amount is set in the regulation to the Act. You must have been injured as a direct result of a violent crime in Alberta. If the crime results in death, a surviving family member or any other person acting on behalf of the deceased may apply for a death benefit. There is only one benefit awarded for a deceased victim and it may be split among eligible survivors. The program recognizes child victims and significantly incapacitated adults are not in a position to apply on their own. In those instances, a guardian or someone acting on the victim’s behalf may apply. You are not eligible for benefits if you are charged and convicted of an offence as a result of the incident, you are a victim of motor vehicle or property offenses such as impaired driving or break and entry or are secondary victims such as family members of the victim or witnesses to the crime. You may be eligible for financial benefits if you have suffered physical or emotional injury as a direct result of being a victim of violent crime that occurred in Alberta. The crime must have been reported to police within a reasonable period of time and the victim cooperated with the investigation into the incident. The application for financial benefits must be received within two years of the date of the incident. Do not wait for a conviction or for charges to be laid. (Additional time to apply may be considered under certain conditions if the applicant was unable to apply due to circumstances). For example, a victim who was hospitalized for an extended period suffering from a brain injury or if the victim was a child and the parent or guardian did not apply on the child’s behalf. The Financial Benefits Program does not pay compensation for costs or losses. It does not cover property damage, medical expenses, funeral costs, loss of wages or pain and suffering. Victims may seek restitution or take civil action for the recovery of costs or losses from the offender. How Do I Apply? Application forms are available from the Financial Benefits Program for an application form through local victim service programs associated with police services or through the Government of Alberta website. (http://www.gov.ab.ca/just/victims/). In almost all cases, a completed application form is the only information you will need to submit. Additional information on the process is provided after the application is submitted. The average time for a decision is about four months but this can vary greatly. Can I Appeal The Decision? You can appeal the decision to Criminal Injuries Review Board.

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TYPES OF CRIMINAL OFFENCES

Criminal offences are classified as either summary or indictable. The simple distinction between summary and indictable offences is that summary offences have lower maximum penalties and less serious consequences in other respects. There are important differences in the legal procedures which apply to each type of offence. Some of the most common criminal offences, such as impaired driving, assault on a peace officer, theft, or possession of stolen property where the value of what is taken or possessed is less than $5,000, may be summary or indictable at the option of the prosecutor. This also includes many criminal charges under the Controlled Drugs and Substances Act, including possession of marijuana, hashish, heroin, cocaine, and so on. The prosecutor has a right to elect whether to proceed against the accused by summary proceedings or by indictable offence. In such cases, the prosecutor normally opts to proceed summarily on a first offence and may choose to proceed by indictable offence for a second or subsequent instance, or for a particularly aggravated set of allegations on a first offence.

TYPES OF PENALTIES

In the Criminal Code, summary offences are generally punishable upon conviction by a maximum $2,000 fine or six months' imprisonment, or both. The maximum penalty for most minor indictable offences, such as theft or possession under $5,000, where these are proceeded with by way of indictable offence, is two years' imprisonment. The two-year maximum also applies to the indictable offences of leaving the scene of an accident ("hit and run driving") and skipping bail. More serious indictable offences bear maximum jail terms of five, seven, 10, 14 years, or life. There is no restriction on the amount of the fine that can be imposed as sentence for most indictable offences. Under the Controlled Drugs and Substances Act, a first conviction for a summary offence carries maximum penalties of a fine of $1,000 or imprisonment for six months, or both. A subsequent conviction for a summary offence carries maximum penalties of a fine of $2,000 or imprisonment for one year, or both. If the Crown Prosecutor proceeds by indictment on a charge of possession of a narcotic, the maximum penalty is seven years. Section 6(3) of the Controlled Drugs and Substances Act states that offences such as importing a narcotic (e.g., cocaine, heroin, or marijuana) carry a maximum term of life. Offences under the drinking and driving sections of the Criminal Code carry the same minimum penalties for conviction of a summary offence or an indictable offence. Penalties are increased on the basis of whether the offence is a second, third or subsequent conviction. For example, for a first offence of impaired driving, the minimum penalty is a fine of $600. For a second offence, whether for impaired driving, summary or indictable, there is an automatic jail term of not less than 14 days. For any subsequent offences, there is an automatic imprisonment for a term of not less than 90 days. Where the offence is prosecuted by indictment, there is a maximum term of imprisonment not exceeding five years, and where the offence is punishable on summary conviction, imprisonment shall not exceed six months. The same penalty provisions apply to the offences of refusing to take a breathalyzer test.

ARREST, BOOKING, AND BAIL PROCEDURES

There are important differences between being charged with a summary or indictable offence in these respects. The Criminal Code does not permit arrest of a person who is to be charged with a summary offence, unless there is a warrant for that person's arrest or unless the officer finds that person committing the offence. In contrast, in the case of indictable offences, an officer can arrest a person who, on reasonable and probable grounds, the officer believes has committed or is about to commit an indictable offence. The Criminal Code obliges a police officer not to arrest a person for a summary offence, or an offence which may be Women and the Law 6th Edition, 2005 18


prosecuted by summary proceedings or by indictment, or an indictable offence where there is a mandatory trial by a Provincial Court judge, unless the arrest is deemed necessary to safeguard public interest. Public interest is defined in the Criminal Code as meaning the need to establish the identity of the accused, to secure or preserve evidence, or to prevent continuation or repetition of the offence or another offence. An officer can also make an arrest where she has grounds to believe that the person will fail to attend court. Booking procedures are substantially the same for summary and indictable offences. However, the usual procedure of an arrest for an indictable offence or an offence which may be summary or indictable is fingerprinting and photographing pursuant to the Identification of Criminals Act. A person accused of a summary offence is usually released on her own recognizance. An accused person charged with an indictable offence, who has been denied bail, is entitled to automatic review of bail after she has been in custody for 90 days. In the case of a summary offence, an accused is entitled to an automatic review of bail if the trial has not proceeded within 30 days of the detention.

APPEARANCE BY COUNSEL

Another important distinction between summary and indictable offences is that an accused need not appear in person in a summary case. She may appear through her lawyer or an agent to set a date for the trial, to enter a plea, and for the trial itself. However, the provincial court judge may require the accused to appear in person. In the case of indictable offences, the accused must appear in person, unless she signs a designation of counsel allowing counsel to appear on her behalf.

PRE-TRIAL AND DISCOVERY PROCEDURES

In summary cases, there is no right to have a preliminary hearing. The usual method of obtaining information before trial is for defence to obtain disclosure from the Crown Prosecutor. There is a provision in the Criminal Code for making a formal application for disclosure, although it is rarely resorted to. In the case of indictable offences, pre-trial discovery in the form of a preliminary hearing is available for all indictable offences except those for which the Code provides a mandatory trial by Provincial Court judge, such as theft under $5,000, false pretenses under $5,000, or possession of stolen property under $5,000. Right to Preliminary Inquiry has been severely restricted by legislation effective June 2004. In other cases of indictable offences, the accused has the right to choose to be tried by a Queen's Bench Judge without a jury, a Provincial Court Judge without a jury, or a Queen’s Bench Judge and a jury. A preliminary inquiry may be held to determine whether there is sufficient evidence to commit the accused for trial. If there is insufficient evidence to commit the accused for trial, then she will be discharged at the end of the preliminary hearing and there will be no trial.

THE LAW OF ARREST

Arrest is the term given to the process of depriving a person of her liberty. Private citizens as well as police have powers of arrest. An arrest can be made with or without a warrant depending on the circumstances and the offence. A warrant is an order issued by a court official (judge or justice) authorizing the arrest of the person named on it. A person who commits or is suspected of committing an offence will not necessarily be arrested. The police may let her off with a warning or issue an appearance notice or summons for her to appear in court at a specified date and time. The police do not make an arrest in every case.

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Police Powers Of Arrest In cases of indictable offences, the Criminal Code provides that a police officer can usually arrest without a warrant, a person who has committed an indictable offence, or who the officer believes has committed or is about to commit an indictable offence. An officer can arrest a person she finds committing a criminal offence, whether it is a summary or indictable offence. In addition, an officer can arrest a person for whom he or she believes, on reasonable and probable grounds, that there is a warrant in force within the territorial jurisdiction in which the person is found. Once again, the distinction between summary and indictable offences becomes important and governs the powers of arrest. A police officer cannot arrest a person on the basis of a belief that the person has committed a summary offence unless the officer has reasonable and probable grounds to believe that a warrant is available. In the case of summary offences, the officer must actually find the accused committing the offence before there can be an arrest without a warrant or at least without a warrant being in existence Arrest By A Citizen There are also powers of citizen arrest in the Criminal Code. A citizen may arrest any person who is committing an indictable offence or any person who, on reasonable and probable grounds, the citizen believes has committed a criminal offence whether it be summary or indictable, and is escaping from and is freshly pursued by persons who have lawful authority to arrest that person. In addition, a citizen who is the owner or lawful possessor of property or a person who is authorized by the owner or lawful possessor of property, may arrest without warrant any person found committing a criminal offence on or in relation to that property. A citizen who makes an arrest must deliver the arrested person to a police officer immediately. Additional Powers of Arrest A police officer or a civilian is also justified in using force to prevent the commission of an offence or to prevent anything being done that a person on reasonable and probable grounds believes would, if it were done, be an offence. This power is restricted to offences for which, if committed, an arrest without warrant would be justified and to offences that would be likely to cause immediate and serious injury to the person or property of some person. No more force than is reasonably necessary can be used for the purpose of preventing the commission of an offence. Arrest Of Suspects In law, there is no power to arrest persons on mere suspicion that they have committed a criminal offence, or for the purpose of further investigating a suspicion that they have committed a criminal offence. Where police arrest a person on mere suspicion that she has committed a criminal offence and where that suspicion does not amount in law to reasonable and probable grounds for believing an offence has been committed, a wrongful arrest will have occurred and the police may be liable for damages in civil law. Section 9 of the Charter of Rights and Freedoms specifically provides that everyone has the right not to be arbitrarily detained or imprisoned. Evidence obtained as a result of an unlawful arrest may not be allowed in court if it violates the provisions of section 9 or the right to be secure against unreasonable search and seizure in section 8 of the Charter. A trial judge can exclude evidence under section 24(2) of the Charter where she finds the evidence was obtained in a manner that infringed or denied any of the rights or freedoms guaranteed in the Charter and where it is established that the admission of the evidence would bring the "administration of justice into disrepute". That is, it would display a lack of integrity within the justice system. Police officers can ask a suspect to voluntarily submit to questioning and even to accompany them to the police station for that purpose. A person who voluntarily goes to the police detachment for questioning cannot later claim damages for false arrest, in the absence of evidence of coercion or threat of coercion by the officers. In the case of voluntary submission without coercion or threat, there would not be a violation of the right not to be arbitrarily detained or imprisoned. What Is Lawful Arrest? To make a lawful arrest, a police officer should identify herself or himself, tell the suspect that she is being arrested, inform the Women and the Law 6th Edition, 2005 20


suspect of the reason for the arrest or show the suspect the warrant if there is one, and, where feasible, touch the suspect on the shoulder as a physical indication of the confinement. In addition, section 10 of the Charter of Rights and Freedoms must be complied with. This section provides that everyone has the right on arrest or detention to: (1)

be informed promptly of the reasons,

(2)

retain and instruct counsel without delay and to he informed of that right, and

(3)

have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful. Habeas corpus means "you have the body." It is a way in which a person in custody can ask a court to decide whether her detention is lawful.

BASIC LAW PRINCIPLES

Generally, there are two elements to every offence. (1) "Actus reus" - the guilty act. The Crown must prove that it was a voluntary act by the accused. It can be classified as the doing or action part of the offence. (2) “Mens rea"- the guilty mind or intent. Did the accused intend that act to occur? In a murder case, an individual could be charged with negligence instead of murder if unable to form intent. An insane person cannot form mens rea and therefore will not be found guilty. Any child under the age of seven does not have the ability to reason and form intent and therefore cannot be charged under the Youth Criminal Justice Act. Both elements must be present in order for the person to be found guilty. However, although the majority of offences require a mental element or mens rea, some do not. Where mens rea is required it consists of two parts: the awareness of the act, and the intent or knowledge. The accused docs not have to know that it is an offence. It is sufficient that she does the act intentionally. Offences may be divided into three categories for purposes of determining the mental clement required: (1)

GENERAL INTENT OFFENCES: require a positive state of mind which the prosecutor must prove. Such offences will usually contain such words as intent, knowledge, or reckless.

(2)

STRICT LIABILITY OFFENCES: the prosecutor must prove that the accused committed the act. The accused can then avoid liability by showing that she took all reasonable precautions to avoid committing an offence, otherwise known as a due diligence defence.

(3)

ABSOLUTE LIABIL1TY OFFENCES: the prosecutor only has to prove that the accused committed the act. It is no defence to the accused to show that she took all reasonable precautions to avoid committing the offence.

THE COURTS

Provincial Court Provincial Court is the first level of court in Alberta. The judicial process begins here for everyone accused of a criminal offence. The judges in this court may also sit on the Family Court and in Provincial Court Civil Division where they hear civil cases involving debt, breach of contract or tort falling under the monetary value of $25,000. Provincial Court Judges handle 90% of all criminal cases. Besides presiding over the first appearance court for all criminal cases, they have absolute jurisdiction over summary offences, including provincial and municipal violations, as well as all Women and the Law 6th Edition, 2005 21


indictable offences under Section 553 of the Criminal Code of Canada, for example theft under $5,000. Judges in Provincial Court are referred to as "Your Honour.”, “Madam” or “Sir”. The Provincial Court Judge must also determine how an individual elects to be tried if she is accused of an indictable offence. For example she can elect to be tried by a Judge of the Provincial Court, a Judge of the Court of Queen's Bench, or by a Judge and jury of the Queen's Bench. Court Of Queen's Bench All indictable offences in the Criminal Code, except those in section 553, are under the absolute jurisdiction of the Court of Queen's Bench. Judges in Queen’s Bench are referred to as “My Lord” or “Sir” and “My Lady” or “Madam”. Alberta Court of Appeal If the accused is sentenced to a period of incarceration, she will be held at a Remand Centre during the 30-day right to appeal period. Both the person convicted of the crime and the Crown has the right to appeal the sentence or the conviction. The Attorney General will determine other appeal applications beyond the 30-day limit. An appeal of the trial decision on a summary conviction offence would be made to the Court of Queen's Bench; on an indictable offence to the Court of Appeal of Alberta. The Supreme Court of Canada is the highest appeal court in the country. The Supreme Court Of Canada The Supreme Court of Canada is the Federal Court of Appeal. Usually, the only cases that are heard by the Supreme Court of Canada are appeals from the Appellate Divisions of the various provinces. As a rule, proceedings cannot be commenced in this Court as all cases must be conducted originally in the Provincial Courts. Because it is the final Court of Appeal in Canada, it hears appeals from the Appellate Divisions of the Provincial Supreme Courts and Queen’s Bench courts and the Federal Court. In criminal cases, an appeal may only be made to the Supreme Court of Canada in cases in which an important point of law or the constitutional validity of a statute is involved.

BASIC TRIAL PROCEDURES

A trial involves complicated rules of evidence and procedure. This section only touches on the most basic procedural points. The trial for a summary offence can be held in the absence of the accused (unlike a trial by way of indictment), but this is rarely done. Usually, the Judge will require the accused to be present. The trial begins with the Prosecutor calling evidence, usually in the form of witnesses. Each witness must be sworn in or affirmed. The Prosecutor questions each witness as to his or her involvement in the case. This is called "examination-in-chief" or "direct examination." In direct examination, the questions can only relate to facts (what the witness saw, felt, heard, etc.). A witness cannot usually be asked for an opinion unless the witness is a qualified expert or the opinion concerns something common to everyday experience, for example, an opinion as to speed or distance. The questions must also be such that the witness tells the story and is not "led" to a "yes" or "no" answer by the lawyer. Another restriction on the types of questions that can be asked is the "hearsay rule." Normally, a witness cannot be asked what he or she was told by a third person outside of court. Confessions by the accused, however, form one of the many exceptions to this rule. In addition to the testimony of witnesses, the Crown Prosecutor can also enter relevant evidence such as photos, weapons, etc., called "real evidence." A third kind of evidence is "certificate evidence," which is common, for example, in impaired driving or drug charges. The rules surrounding this sort of evidence are very strict and complex. When the Crown Prosecutor finishes questioning a witness, the defence can then "cross-examine" that witness. In crossexamination, the questions can be leading, and almost any question that tests the accuracy or the credibility of a witness is Women and the Law 6th Edition, 2005 22


allowed, as long as it is relevant and not vexatious or repetitive. When the prosecution presents all of its evidence, it "closes its case." At that point, the defence can elect to either call defence evidence, or call no evidence. If the defence does call witnesses, it is restricted to essentially the same kinds of questions as the prosecution was in "direct examination" with no leading questions. When the defence has finished questioning, the prosecution can then cross-examine. This process continues until the defence "rests its case." When the evidence has been presented, each side sums up its case, reviewing the evidence and referring to applicable law. If the defence calls no evidence, then the prosecution sums up first. If defence evidence is called, then the defence sums up first. The Judge then reaches a decision as to guilt or innocence. If satisfied beyond a reasonable doubt that the accused is guilty as charged, then the Judge considers a sentence. Otherwise, the accused is acquitted. Before a sentence is imposed, however, each side has an opportunity to "speak to sentence," where the same factors come into play as discussed above.

DEFENCES

An accused person who puts forward a defence is saying either that she did not commit the offence or, that while she may have committed the actus reus required by an offence, there are circumstances which either prevented her from forming the mens rea or which excuse her from liability for the offence. For example, not everyone who kills another person is guilty of murder. A police officer may have to kill in the course of duty to protect his or her life or that of an innocent bystander. Duress A person may claim a defence of duress where she commits an offence under threat of immediate death or serious injury should she refuse. She must believe that the threats will be carried out and must not be part of the original plot to carry out the offence. The threat does not have to be against her. For example, it might be against her child, spouse, or a stranger. The person making the threat must be present and in a position to carry out the threats. This defence is not available for all offences. Excluded offences include murder, attempted murder, robbery, arson, forcible abduction and sexual assault. The accused must raise the defence and provide sufficient evidence to raise doubts as to whether she was acting under duress. Mistake Of Fact This defence arises from the requirement that the Crown proves beyond a reasonable doubt that the accused committed the guilty act and had the necessary guilty mind. Mistake of fact may be used as a defence where the mistake is such that it misleads the accused into thinking that she is either not committing an offence at all or is committing a less serious offence than the one she actually commits. For example, Ann is told by Bill that Charlie has taken his bicycle. Bill asks Ann to get it back. Ann has seen Bill riding the bicycle in the past and believes that Bill owns the bike. Ann takes the bike and returns it to Bill. The bike in fact belongs to Charlie. Ann may have a defence of mistake of fact. Mistake of Law It is true that ignorance of the law is no excuse. We cannot avoid liability for committing a wrongful act by claiming that we did not know that it was an offence, despite the fact that it is impossible to be aware of every law and regulation. The Charter of Rights and Freedoms has had some effect on this doctrine. Recently there have been cases where the courts have decided that it would be unfair to convict the accused where she was not informed of the offence and had not been Women and the Law 6th Edition, 2005 23


properly informed. In reaching their decisions, the courts have looked particularly at section 7 of the Charter which provides that a person should not be deprived of the right to life, liberty, or security of the person except in accordance with the principles of fundamental justice. Not Criminally Responsible on Account of Mental Disorder The issue of not criminally responsible on account of mental disorder may be raised by the defence or the prosecution. The accused can be not criminally responsible on account of mental disorder at the time of the offence or at the time of trial. A hearing will be conducted to see whether the accused is fit to stand trial. The Judge may send her for observation for up to 30 days (60 in some circumstances). If she is found unfit to stand trial, she will be kept in custody at the pleasure of the Lieutenant Governor. If the accused is tried but acquitted by reason of being not criminally responsible on account of mental disorder, the Judge will order her kept in custody until the Lieutenant Governor makes an order as to where she will be kept. An order may be made for the safe custody of the accused in a place and manner directed by the Lieutenant Governor or for the discharge of the accused either absolutely or subject to conditions. When considering whether to release the accused, the Lieutenant Governor must look at the best interests of the accused and the public. Self Defence A person who is attacked by another has the right to defend herself. She must use no more force than is necessary to repel the attack. She may be justified in killing her attacker or causing him serious bodily harm if she has reasonable grounds to believe that it is the only way to save her from death or serious injury. She must have been in reasonable apprehension of death or serious injury from her attacker at the time. In assessing the probability of such apprehension the court may consider evidence of the attacker's violent nature. A person who assaults another and is then attacked by that person may be justified in using force to repel the attack. She must not have commenced the original assault with the intention of causing death or serious injury. She may only use as much force as is necessary to repel the attack and must be able to show that she declined further conflict and tried to retreat from the attack. For example, Ann pushes Bill. In response Bill punches and kicks Ann. Ann tries to run away but is stopped by Bill. Ann is justified in using force to repel Bill's attack. A person may also use as much force as is necessary to prevent an assault, or to prevent someone from taking her property, or to prevent someone from breaking into her home. Pre-Menstrual Syndrome (PMS) PMS is not a defence but has been accepted as a mitigating factor when considering sentence. If there is some clear medical evidence that the woman suffers from PMS and did so at the time of the offence, it may serve to reduce her sentence. Drunkenness Drunkenness has been accepted by the Supreme Court of Canada in R. v. Daviault as a defence for committing an offence. If a person is intoxicated to such an extent that she is incapable of forming the necessary specific intent for the crime, then the person can not be found guilty. However, a person may still be found guilty of a lesser offence requiring a less specified degree of intent. In the case of murder, drunkenness may reduce the offence from murder to manslaughter. Provocation Provocation does not justify, and is not a defence to, an assault although it may mitigate the sentence. Provocation includes blows, words or gestures. Provocation is a limited defence to a charge of murder. Section 232 of the Criminal Code states: (l)

Culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation.

(2)

A wrongful act or insult that is of such a nature as to be sufficient to deprive an ordinary person of the power and selfWomen and the Law 6th Edition, 2005 24


control is provocation for the purposes of this section if the accused acted upon it on the sudden and before there was time for his passion to cool. Battered Woman's Defence The 1990 Supreme Court of Canada decision in the Lavallee case questioned the presumption that only immediate danger is the basis for an acquittal on the basis of self-defence. According to Lavallee, if a judge or jury finds that a woman reasonably anticipated death or grievous bodily harm (even though it wasn't a threat at that very moment), and that she used an appropriate amount of force in response to that threat, she should be acquitted. Expert evidence will explain the violence cycle, and the psychological effect of the victim of repeated violence.

SENTENCING

Pre-Sentence Report Sentencing takes place in a court following a guilty plea or a finding of guilt by the judge or the jury. Sentencing may take place immediately after the plea or finding of guilt or be delayed pending preparation of a pre-sentence report. A pre-sentence report is prepared by a probation officer at the request of the judge or on the suggestion of either lawyer. The report assists the judge to decide on the most appropriate sentence for the offender. The probation officer looks at the offender's background, previous convictions, family life, work record, current employment, any treatment or counselling the offender is receiving, and the offender's attitude towards the offence. The probation officer may talk to the offender, her immediate family, and/or the police. Copies of the report should be provided by the clerk of the court to the accused or her lawyer, to the judge and the prosecutor. If the defendant disputes the accuracy of statements in the report, the onus is on the Crown to prove that they are true; otherwise the judge should not take them into account. While the report is being prepared, the judge may order that the offender remain free on bail or recognizance or be held in custody. Speaking to Sentence Prior to passing sentence, the judge gives the accused, her lawyer and the prosecutor an opportunity to speak to sentence. The defence should provide information on the accused's background, employment, education, dependents. The prosecutor provides information on the accuser’s criminal record (if any) and on the circumstances surrounding the offence, such as whether the accused was drunk. The defence may also wish to explain the circumstances. Absolute Discharge An absolute discharge means that the person pled or was found guilty but is deemed not to be convicted. However, having been granted a discharge becomes part of the criminal record. A check of the person's record would reveal a record of Absolute or Conditional Discharge, not a criminal conviction. The RCMP will automatically remove information about discharges given after July 24, 1992 from their computers one year after the court decision. Information about absolute discharges given before July 24, 1992 will not be removed automatically. After one year, you can write to the RCMP in Ottawa and ask for the information to be removed. Conditional Discharge The terms attached to a conditional discharge are similar to those found in a probation order. If the offender meets all the conditions in the allotted time period, the Court will grant a conditional discharge. The RCMP will automatically remove information about conditional discharges given after July 24, 1992 three years after the court decision. Information about conditional discharges given before July 24, 1992 will not be removed automatically. After three years, you may write to the RCMP in Ottawa to request removal of the information. Women and the Law 6th Edition, 2005 25


Probation The court may place the offender on probation for a period of time or probation may be added to any of the other sentencing alternatives. Probation is a disposition of the courts that allows the individual to serve her sentence in the community within certain conditions. The only mandatory conditions are that the individual "keep the peace and be of good behaviour and report to the courts when required to do so." Common added conditions are: supervision (reporting to a probation officer); refrain from the use of alcohol and drugs; refrain from associating with certain individuals. The longest period of probation is three years. Breach of probation is a summary offence. The individual can be returned to court and given a further sentence on the original crime. Fines and Fine Option In many cases, a fine is given as a penalty for committing an offence. While maximum fines are stated in the Criminal Code, e.g. maximum $2,000 for a summary offence, the actual amount given within that limit is at the discretion of the judge. In Alberta, persons who do not have funds to pay a fine may be eligible to work in the community under the Fine Option plan. The Fine Option plan allows people to work their fines off in the community at the rate equal to the provincial minimum wage rate, which is presently $5.90 per hour, to be raised to $7 per hour on September 1, 2005. For example, for a $600 fine, the person would have to work just under l02 hours. There is no actual exchange of money with the offender; the minimum wage rate is a rate used to determine the number of hours the individual must work. Imprisonment The Criminal Code indicates maximum and minimum sentences for a wide variety of offences. For example, robbery has a maximum sentence of life, assault causing bodily harm has a maximum of ten years, and importing narcotics has a seven year maximum. All summary offences have a maximum of six months in jail, $2,000 fine and/or both. As well, the court may order that the sentences, if there is more than one, be served concurrently or consecutively. Concurrent Sentences — All sentences commence on the same date and the total jail time is concluded when the lengthiest of the concurrent sentences is complete. Usually, related offences that occur the same day or week are sentenced concurrently. Also if the person is already serving a sentence, she is likely to get concurrent time. If you are dealing with several charges at the same time, you are more than likely to get concurrent time. Consecutive Sentences — These sentences are served one after the other and related to totally separate offences. If an offender is convicted of robbery and sentenced to three years, and on the same date is convicted of sexual assault and sentenced to two years, a total term of five years would be imposed if the sentences were consecutive and three years if concurrent. Conditional Sentences --- A conditional sentence avoids actual incarceration behind bars and allows criminals to serve their period of incarceration under a term of “house” arrest. There are three pre-requisites for a conditional sentence: 1) the sentence of incarceration must not be more than two years less a day; 2) the offender must not be a danger to the public, and . 3) the offence must be one for which no minimum sentence is required by the Criminal Code. If these three pre-requisites are made out, the judge may consider a term of “house arrest”. If the judge sentences someone to a term of less than two years in jail (a day less), the sentence will be served in a provincial institution, while two years or more are served in federal penitentiaries. 1. Provincial Sentences Anyone who received a sentence of two years less a day is considered to be a provincial inmate. The judge has a variety of options available when passing sentence. CUSTODY --- The judge can sentence a person to custody, anywhere from one day to two years less a day. INTERMITTENT --- This type of sentence allows the person to serve their time on weekends. This is usually done in conjunction with special circumstances, as long as the offence was not a serious or violent offence, e.g. serving a weekend sentence would allow a single mother to keep her job and children, while satisfying the court at the same time. FINE --- A judge can sentence a person by handing down a fine. The judge can not only stipulate the amount in the fine, but can also sentence the accused to the fine or time in jail (default). The accused may end up serving part of the disposition in Women and the Law 6th Edition, 2005 26


custody until the fine is paid. TEMPORARY ABSENCES (TAs) --- Provincial inmates are eligible for release after they have served l/6th of their time. Inmates would normally receive day TAs to begin with. This would enable the inmate to be in the community during the day, and return to the centre in the evening. All inmates who are in the community have to have TA status. TAs allows offenders to reside at halfway houses, treatment centres, or return home. Provincial offenders are released at their 2/3 date. Unless their sentence was accompanied by probation, they are free and clear. 2. Federal Sentences The federal system also uses TAs; however the purpose of the TA is quite different from the provincial system. Most federal TAs are granted for a period of up to 74 hours per three-month period by the authority of the Warden of the Penitentiary. An inmate will often be granted a number of "Escorted Temporary Absences" (ETA) for a short period of time, e.g. two to four hours, before she will be granted an "Unescorted Temporary Absence" (UTA). UTAs may be granted to allow the inmate to apply for a job, attend an interview with a prospective landlord, and attend family functions or simply to visit with family or friends. The National Parole Board (NPB) is the only body which has the authority to approve a TA for more than three days but not exceeding 15 days. These TAs are granted for humanitarian reasons and for rehabilitation purposes. Eligibility for TAs usually arises at the same time as eligibility for day parole (1/6) and is usually the first form of release that an inmate will be granted. The federal system also utilizes parole for the release of inmates back into the community. DAY PAROLE --- Inmates are usually eligible for day parole six months prior to their full parole eligibility. Day parole will be granted only when the National Parole Board considers that it will aid the inmate's reform and rehabilitation without constituting a risk to society. The NPB will set the conditions which the inmate must follow while on day parole, e.g. return to centre or halfway house every evening. Day Parole generally only lasts for a six-month period. It may be revoked or terminated if the inmate has become an undue risk to society. FULL PAROLE --- This allows the inmate to remain at large until the end of sentence, unless the release has been suspended, terminated or revoked. An inmate is generally eligible for full parole after serving 1/3 of their sentence. Full parole is usually granted to those who do not constitute an undue risk to society, and who have derived maximum benefit from imprisonment, and whose reform and rehabilitation will be aided by granting full parole. The NPB may deny release only in a number of special circumstances where the commission of the offence caused death of or serious harm to, another person and in the opinion of the NPB there are reasonable grounds to believe that the inmate is likely to commit another such offence prior to expiration of her sentence. This also applies to offenders who are believed likely to commit a serious drug offence prior to sentence expiry. The NPB may also grant one -chance statutory release. This type of release, once revoked, calls for the inmate to serve the rest of her sentence in a penitentiary with no possibility of a further release until sentence expiry. The release of an offender may be suspended: (1)

when a breach of a term or condition of parole occurs;

(2)

to prevent such a breach from occurring; or

(3)

to protect society.

Normally, a release would only be suspended when the situation indicates that the continued release would constitute an undue risk. Revocation or termination of parole occurs when the inmate has become an undue risk to society, either by committing a further offence, by violating the conditions of her parole, or because she is likely to do so. Where the parole or statutory release of an offender is terminated or revoked, the offender shall be recommitted to custody and shall serve the portion of the term of imprisonment that remained unexpired on the day which the parole or statutory release was terminated or revoked.

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CRIMINAL RECORD

Individuals who have been found not guilty or who have had their cases dismissed will not have a criminal record. A criminal record does accompany the following: suspended sentence, probation, and fine or prison sentence.

PARDONS

If you have been convicted of an offence under the Criminal Code or any other federal legislation, you may make an application to the National Parole Board for a pardon in respect of that offence. The Board must investigate your circumstances since the date of your conviction. You must not have reoffended and be of good behaviour. The effect of the grant of a pardon is to automatically remove the record of the conviction in federal documents, and when applying for employment in connection with a job that is under the legislative authority of the federal government, remove any disqualification to which you are subjected because you had a conviction. While a pardon is a federal creature and only applies to federal records, many provinces and municipalities will voluntarily restrict access to your record upon application, establishing you were granted a pardon by the federal government. You may be eligible for a pardon from a summary conviction three years after you have paid your fine or completed your sentence. A pardon from an indictable offence may be obtained five years after the completion of your sentence or payment of your fine. If you received an absolute discharge, you are eligible to have this removed from your record after one year; if it was a conditional discharge, the waiting period is three years. If the discharge was received after July 24, 1992, the RCMP will automatically remove this information from their computer after the specified waiting period. If you received the discharge before July 24, 1992, you must request the RCMP to remove the discharge from their system.

“YOUNG PERSONS” RECORDS

If you are a “young person” (under 18), and convicted of an offence under the Youth Criminal Justice Act, a finding of guilt may remain on your record after you turn 18. On summary matters, your juvenile record stays with you for three years after conviction and you have complied with all conditions of sentencing. On indictable matters, your youth record stays with you for five years after your conviction and you have satisfied all conditions of sentencing. If you commit another offence during the three years after you complied with all conditions of sentencing on a summary conviction matter or five years after complying with all conditions of an indictable matter, your youth record will remain with you until you have complied with all conditions of your further offence, plus three to five, depending upon whether your further conviction was for a summary or indictable offence. Warning: Once a youth record has been terminated (there are some exceptions), any disqualification in respect to the offence is removed, and no application form for or relating to employment with the federal government or any Crown corporation, Canadian Forces, or employment with any business within the legislative authority of the federal government shall contain any question requiring you to disclose a youth record. However, some police departments do not clear their records and a “record check” may disclose a youth criminal record which has been terminated.

TRAVELLING WITH A CRIMINAL RECORD

If travelling outside of Canada, be aware that each country has the right to refuse entry to any person with a criminal record. When planning a trip, the individual should contact the Consulate of the country they wish to visit. Women and the Law 6th Edition, 2005 28


A pardon under the Criminal Records Act will not automatically entitle a person to enter a foreign country. A pardon is a means of formally recognizing that an individual has been rehabilitated and reintegrated into society. Pardons do not "erase" criminal records; rather records of pardoned convictions are kept separate and will not be disclosed without specific permission of the Solicitor General of Canada. As a result of agreements between Canada and the United States, American immigration officials receive a computerized record of all convictions in Canada. The record of a criminal conviction in Canada remains on record in the American system even after a pardon has been issued. Therefore a Canadian travelling to the United States is just as likely to be refused entry after receiving a pardon as without it. The United States does not have to recognize a pardon granted in Canada. If you have a conviction for a drug offence under the Controlled Drugs and Substances Act, the United States has a zero tolerance for those offences and will not grant entry and this includes “in transit” stopovers. Absolute discharges and convictions in Youth Court might not be classified as "criminal offences" and normally will not bar admission to the U.S. A person receiving a conditional discharge will probably be considered to have a criminal record. U.S. immigration policy is subject to change, especially after September llth, so it is a good idea to call U.S. Immigration as soon as you decide to travel. If you are not sure whether you would be granted admission to the U.S., it may be helpful to contact a border crossing to get information on your particular case as soon as possible before you plan to travel. The phone number for U.S. Customs and Border Protection at the Edmonton International Airport is (780) 890-4486. The number for U.S. Immigration at the Calgary International Airport is (403) 221-1730. You can also call the U.S. Consulate in Calgary at (403) 266-8962. There are two possible methods for a person with a criminal record (i.e. a person who would otherwise be inadmissible) to enter the United States: (1)

Parole Admission and

(2)

Waiver.

(1) Parole Admission U.S. Immigration Officers have discretion to admit people to the U.S. who would not automatically be admissible. This discretion will be exercised based on an interview with the person either prior to, or at the time of, attempting to enter the U.S. There are two grounds for admitting a person. Public Interest — if the admission of a person is in the public interest, the individual can be admitted at the discretion of the Immigration Officer. Humanitarian Reasons — if there are compelling humanitarian reasons such as a death in the immediate family, the Immigration Officer has discretion to admit the person. Parole admission will only be granted in rare circumstances. It must also be emphasized that parole admission is discretionary and there is no certainty that a person admitted one time would be permitted to enter the U.S. on a later occasion. (2) Waiver The waiver process is similar to the process of applying for a pardon under the Criminal Records Act. The applicant must complete a number of forms and send fingerprint samples, a photo, and a copy of their criminal record. All of the material necessary to apply for a waiver can be picked up at any border crossing, (including the Calgary or Edmonton International Airport). The successful applicant will be notified of the waiver following an investigation by the U.S. Immigration authorities. The entire process will take at least three to four months to complete. The waiver itself will expire after one year, but it may be possible to take the waiver to either the airport or a border crossing and apply for a regular border crossing card which will allow access into the United States indefinitely — until it is revoked. Being convicted of another crime will cause the regular border crossing card to be revoked.

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WR

omen’s ights

Women and the Law 6th Edition, 2005

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THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS

The Canadian Charter of Rights and Freedoms ("the Charter") became part of the Canadian Constitution on April 17, 1982. Most of the provisions of the Charter came into effect that day. Section 15 of the Charter came into effect on April 17, 1985. The Charter guarantees fundamental freedoms, democratic rights, mobility rights, legal rights and equality rights. These rights and freedoms are guaranteed because the Charter is "entrenched." The Charter can only be changed by a strong majority of provincial and federal governments, not by the federal government alone. No federal or provincial law can conflict with the rights and freedoms set out in the Charter, although it is possible for the federal or provincial governments to "opt out" of certain parts of the Charter. The Charter is intended to protect Canadians, landed immigrants and minorities from excessive and unreasonable actions by both the federal and provincial governments. The Charter is not meant to deal with non-governmental actions. It will have little impact on purely private matters, for example, where a prospective tenant claims she was denied the opportunity to rent an apartment or house because of her race. The Alberta Human Rights, Citizenship and Multiculturalism Act or the Canadian Human Rights Act will continue to apply to most of those problems. When Will The Charter Protect Your Rights? The purpose of the Charter is to prevent the government from violating your rights and freedoms. Federal and provincial governments have a lot of power over our daily lives. The Charter helps to prevent governments from abusing their powers. The Charter only applies to activity in the public domain. It does not preserve your rights against private individuals. Some examples of government action that might be challenged under the Charter are: (1)

Federal or provincial legislation that violates a Charter right.

(2)

Federal or provincial government policy whose provisions or effects violate a Charter right.

(3)

Federal or provincial government practice which has features or an effect that violate a Charter right.

(4)

Circumstances arising from being charged with a federal or provincial offence.

YOUR RIGHTS UNDER THE CHARTER

Freedom of Religion, Thought, Belief and Expression Section 2 of the Charter states we have the right to freedom of conscience and religion. It also guarantees our freedom of thought, belief, opinion and expression, including freedom of the press and other media. Section 2 also protects our right to hold peaceful assemblies and to associate with whomever we choose. The courts have interpreted freedom of religion to include the right to entertain whatever religious beliefs you choose. This would include choosing non-belief. According to the courts, the government should not pass any laws that have the effect of pressuring individuals to choose any specific religion or to observe its customs. Our courts found that the law that stopped stores from opening on Sunday violated this freedom. Freedom of thought, belief, opinion and expression and freedom of the press are guaranteed, but these rights are only protected to the extent that they do not deprive other Canadians of their constitutional rights. For example, promoting hatred toward a certain social or ethnic group is not seen by the courts as an acceptable exercise of freedom of expression because it could infringe on the constitutional rights of people in that particular group. The fact that we have laws against obscenity, defamation, libel and slander are other examples of how these rights are not unlimited. Our rights to meet in peaceful groups and to associate freely are crucial to preserving freedom and democracy in our society. Women and the Law 6th Edition, 2005 31


These rights mean we may meet with whom ever we choose to discuss things like common goals or political opinions. This allows people to challenge the government or try to cause social change without fear of being punished. However, the protection would not extend to a group which wants to organize a riot or meets to plan the commission of crimes. Right to vote Section 3 guarantees that Canadian citizens have the right to vote in federal and provincial elections. It also guarantees that Canadian citizens may run to be elected to federal and provincial office. As with all other Charter rights, the courts have held that these rights are not absolute. There will be situations where this right is justifiably violated. For example, the practice of denying convicted criminals currently serving sentences in prison the right to vote in provincial elections is considered permissible. However, the practice of denying patients in mental hospitals this right has been judged by the courts to be an unjustifiable violation of democratic rights. Time Period Between Elections This section states that no federal or provincial government may continue in power for more than five years without an election. It is a fundamental principle of democracy that no government may hold power indefinitely without being elected regularly by the people. The second part of section 4 provides an exemption to the above, where a government in power may continue beyond five years if wars, invasions, or insurrections occur, and if such a continuance is not opposed by the vote of more than one-third of the members of the Parliament or Legislature. Legislative Sittings Section 5 ensures that the federal Parliament and the provincial legislatures must sit at least once every 12 months. This law helps to guarantee that our elected representatives remain accountable to the voters and to the other members of the federal and provincial houses. The Right to Enter, Remain In and Leave Canada Section 6 guarantees all Canadian citizens the right to enter, remain in, and leave Canada. Citizens and permanent residents are also guaranteed the right to move and to live in any province, and to look for work there. However, these rights are subject to any provincial legislation of general application such as laws setting out the qualifications you need to be a doctor or a lawyer. This allows provinces to set reasonable residency requirements for public services like health care. Provinces may also develop employment programs for socially and commercially disadvantaged residents in that province without violating your rights under this section. Laws permitting extradition, deportation, quarantine and imprisonment appear to violate the rights under this section. However, in most cases courts would probably find the limits such laws place on your rights to be justifiable even in a free and democratic society. The right to gain a livelihood in any province means the government should not act to prevent you from getting a job. It does not put an obligation on the government to provide you with employment. Legal Rights Section 7 gives a general statement of the rights in the Charter known as legal rights. More detailed examples of legal rights are set out in section 9 though section 14. These sections deal mainly with the protection of the individual when she is subject to some sort of legal proceedings. These proceedings are most often criminal or administrative. Section 7 is designed to ensure the power of the state does not over- come the individual. Section 7 protects the right to life, liberty and personal security. The courts have also interpreted this section so that it guarantees the right to silence. If the state wishes to take action that violates these rights, it must do so in accordance with the principles of fundamental justice. For example, if the state wishes to imprison someone for committing a criminal offence, that individual must be presumed innocent, the state must prove the person is guilty and she must receive a fair trial. If such requirements of fundamental justice are met, imprisonment will not violate the liberty rights given under section 7. This Charter right has also been used to protect rights to bodily integrity and personal autonomy. Legislation that forces individuals to receive medical treatment could be challenged under this section. Women and the Law 6th Edition, 2005 32


Section 7 is of particular interest to women, for it is under this section that abortion laws have been challenged. The Supreme Court of Canada used section 7 in striking down the criminal abortion law in the R. v. Morgentaler case (1988) on the basis that the administrative impediments to abortion created by that law were a violation of a woman's right to liberty and security of the person. Unreasonable Search and Seizure Section 8 of the Charter guarantees the right to be secure against unreasonable search and seizure. Preserving these rights maintains a balance between the objectives of law enforcement and an individual's right to privacy. Some agents of the state may carry out searches, but according to the Charter, these searches can only be done where there are reasonable grounds to believe you have evidence of an offence on your person (e.g. a concealed weapon). These searches will not be reasonable if the police are just suspicious of you. Generally, the police may not search you, your home or your vehicle unless they have a valid search warrant granted to them by a judge. If they do not have a warrant, they may still perform a search, but will have to prove they had reasonable and probable grounds for doing so. They might have had reasonable grounds to search you for drugs if an informant had told them you were carrying drugs. It they saw your vehicle swerving across the road that might give them reasonable grounds for searching your vehicle for drugs or alcohol. Unreasonable seizure might occur if authorities took samples of blood or other bodily fluids without having legal authority to do so. Your right to be free from unreasonable search and seizure does not apply once you have been arrested. After the police place you under arrest they have the right to search you for evidence, weapons, etc. Not only do the reasons for the search have to be reasonable but the manner in which the search is carried out must also be reasonable. If the authorities use excessive force or violence in carrying out the search, they have likely violated your rights. Detention and Imprisonment Section 9 guarantees that you will not be detained or imprisoned by the authorities unless they have a valid reason to do so. This prevents authorities from holding you unless the law gives them that power. It could also be used to challenge laws that allowed you to be detained or imprisoned without just cause. It is not always clear what government actions fall within the meaning of "detention." Generally, you are detained once the authorities are exercising some control over your movements or placing restraints on your liberty. Rights Upon Arrest or Detention Section 10 provides personal rights which apply upon arrest or detention. The section guarantees you several rights. You have the right to be told why you are being arrested or detained. It is important that you be told the reasons as soon as possible. You have the right to contact a lawyer without delay and the police must inform you of that right. Once arrested, you can be taken into custody, but you are not obligated to answer any questions and you should not do so until you have spoken to a lawyer. This right places an obligation on the arresting officer to give you a reasonable opportunity to contact counsel. The police should stop questioning you once you ask to see a lawyer. They can resume questioning once you've spoken to counsel. The right to counsel may include the right to consult with your lawyer in private. In some situations, it may be acceptable for police to deny you access to a lawyer temporarily, for instance, if they are arresting several people for the crime they might be justified in denying you the use of the phone until they have arrested everyone. If you have not been arrested, then you do not have to go with the police for questioning even if they ask you to do so. If you do go with the police voluntarily, section 10 does not apply; that is, you do not have the right to consult a lawyer, etc. Furthermore, you are not obligated to answer any question, subject to certain exceptions. For example, if you are driving a motor vehicle and stopped by a police officer, you must show your driver's license if asked to do so. If the police request that you attend at a police station and give a breath sample, the police must advise you of your rights and give you the opportunity to exercise them if you so wish. Rights When Charged with an Offence Your rights under section 11 are activated when you are charged with an offence. You are guaranteed the right to the informed of the charge(s) against you without delay. This means the nature and the cause of the charges should be explained to you — an indication of the alleged acts or events that led to the charge would be necessary. You should also be told the time period and the place of the alleged offence. Women and the Law 6th Edition, 2005 33


You have the right to be tried within a reasonable time from the date you are charged with the offence. The courts have tried in several cases to define "reasonable" delay but for now it depends on the factors in each case. Some of these are the actual length of the delay, whether the delay has somehow prejudiced the accused (e.g. your key witness died before trial), whether the delay is caused by lack of court time or whether or not you have agreed to give up your right to a speedy trial. If you are responsible for the delay (you have asked for adjournments or you failed to appear in court) you will not be able to claim a violation of this Charter right. Section 11 also guarantees that you will not be forced to be a witness in your own trial. This section guarantees one of the most important rights in the criminal justice system — the right to be presumed innocent until proven guilty. You are also guaranteed the right to a fair and public hearing before an independent and impartial tribunal. The presumption of innocence places an obligation on the Crown to present enough evidence in court to convince the judge or jury, beyond a reasonable doubt, of your guilt. The concepts of a fair trial or an independent and impartial tribunal are less concrete. Your right to a fair trial might be violated if the judge or jury is told you were previously convicted for the same offence before they give their verdict. Massive press coverage about a crime could deprive someone of their right to a trial before an impartial tribunal as that would make it difficult to find jurors or a judge who had not been biased by the media reports. The courts have decided that the combined effect of your section 7 rights and your right to a fair trial give you the right to he represented by counsel at trial. This means you should be given the opportunity to get a lawyer before having to go through a trial. However, if you deliberately fail to hire a lawyer or you fire a lawyer just to delay the trial, proceeding to trial when you don't have counsel might not violate your Charter rights. Another Charter right under this section is the right to reasonable bail. A judge should not deny you bail without just cause for doing so. Some valid reasons for denying bail might be: a lengthy criminal record, other charges pending, you are only visiting the country, or concern that you will not show up for scheduled court appearance. If a judge were to impose a condition for release that he or she knew you would be unable to meet, this might violate your Charter rights. You are guaranteed the right to a jury trial if you are charged with an offence that has a maximum penalty of five or more years in jail. This section also protects you from being found guilty of an offence due to some act or omission, unless at the time of the act or omission it was an offence under Canadian or international law. Should the punishment for an offence change between the time you are charged and the time you are sentenced, you are entitled to the lesser punishment. Finally, section 11 guarantees that if you are tried and acquitted of an offence or found guilty and punished for an offence, you cannot be tried again for the same offence. This does not mean that once you are convicted of shoplifting you can never be convicted for it again. It means that you cannot be charged twice for the same act - same offence, same date, same act/omission, same victim, etc. Cruel and Unusual Treatment This Charter right (section 12) states that everyone has the right not to be subjected to cruel and unusual treatment or punishment. The courts have recognized that the meaning of "cruel and unusual" will change depending on the circumstances in each case. For instance, sentencing someone to life imprisonment for driving five km over the speed limit is cruel and unusual but if they committed first degree murder it is not. The courts look at the overall situation and ask if the punishment is so excessive it would "outrage standards of decency" — if it does, it violates the Charter. This section can be extremely useful in protecting the rights of prisoners or mental health patients. Protection from Self-lncrimination Section 13 protects you from self-incrimination. If you are testifying in a trial where you are not the individual accused of the offence and you give evidence that could be used to incriminate you, that evidence cannot be used against you if you are later put on trial, unless it is a trial for perjury. If you are tried for an offence and a re-trial is ordered, this right can be used to keep out evidence that was given at the first trial. This right is not only available in criminal proceedings. You are protected in any legal proceeding that exposes you to some sort of "charge, penalty or forfeiture."

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Right to an Interpreter Section 14 guarantees you the right to have an interpreter present during legal proceedings if you are unable to understand the language in which the proceedings will be conducted. This right applies to civil and criminal proceedings and even to proceedings before a tribunal. Equality Rights Section 15 should be of particular interest to women because it deals with "equality rights." The section specifically prohibits discrimination on the grounds of race, national or ethnic origin, colour, religion, gender, age or mental or physical disability. As well, section 15 implicitly prohibits discrimination on other grounds relating to personal characteristics of the individual or group. For example, discrimination on the basis of pregnancy, marital status or sexual orientation may be illegal under the Charter. This section does not protect people from discrimination in the private sector. In Alberta, the Alberta Human Rights, Citizenship and Multiculturalism Act provides this protection. If you feel you are being discriminated against by someone other than the government, you should either contact the Alberta Human Rights Commission (for discrimination in areas of the private sector which the province deals with, like schools, employment or accommodation) or the Canadian Human Rights Commission (if the discrimination occurs in an area of the private sector dealt with by the federal government, like banking). Both Commissions can conduct an investigation into the matter with no cost to you. Section 15 did not become law at the same time as the rest of the Charter. The delay was to allow the provincial and federal governments enough time to find and change laws that had terms or provisions in them which were discriminatory. Even with the three-year delay, there are still some laws in existence that are discriminatory; it will take some time before they are all changed. In many cases, individuals have to start legal proceedings and ask the courts to declare that certain laws are invalid because they violate the rights and freedoms guaranteed under the Charter. According to Section 15(1), every individual is "equal before and under the law and has the right to the equal protection and equal benefit of the law." This does not guarantee absolute equality. Section 1 of the Charter makes it clear that all Charter rights are subject to "such reasonable limits prescribed by law as can be justified in a free and democratic society." For example, laws that make distinctions on the basis of gender in order to attain necessary social objectives may be acceptable. However, if a discriminatory law cannot be justified, then it has no force. Under section 15(2), certain kinds of affirmative action programs are permissible. Programs which, for example, provide for the preferential hiring, job training or promotion of women will be protected by section 15(2) if they are aimed at the improvement of conditions of disadvantaged women. This section does not give women a right to preferential treatment, but without section 15(2), such programs might be viewed as reverse discrimination and therefore illegal under section 15(1). It is important to note that the federal or provincial government may override the provisions of section 15 or any other Charter right by passing a law which expressly states that that section does not apply. The override clause, found in section 33 of the Charter, would automatically expire at the end of five years, but it could be re-enacted. However, section 28, which states that the rights protected by the Charter are guaranteed equally to men and women, cannot be overridden by either the federal or provincial governments. Official Languages Sections 16-22 recognize Canada's official languages of French and English. Those languages have equal status in the federal Parliament and in federal government agencies. This means that both French and English may be spoken in the House of Commons, and that federal government services must be made available in both languages. Language of Education Section 23 also deals with language rights in the area of education. It goes beyond the rights in sections 16 to 22, and guarantees that English and French speaking minorities in a province can have their children educated in their own language. The right only applies when: the minority language is the parents' first language learned, and the minority language is still understood by the parents; or, the parents were educated in primary school in that language in a province where it was a minority language; or the parents had another child educated in primary or secondary school in that minority language. Even if all these conditions are met, the government is not obligated to provide educational services in the minority language unless there are enough students to justify supplying a teacher, facilities, etc. out of public funds. Women and the Law 6th Edition, 2005 35


This Charter right only applies to Canadian citizens. Other Rights Section 26 recognizes that there are other rights that exist, outside the Charter, at common law or in other human rights statutes. These other rights are to co-exist with the Charter unless the other rights themselves violate the Charter, in which case the Charter is paramount. Multicultural Heritage Section 27 requires the courts to interpret the Charter in a way that is consistent with the preservation and enhancement of the multicultural heritage of Canadians. It does not actually confer cultural rights but does direct the courts on how to interpret the rights contained in the Charter. To date, the courts have mainly used it when interpreting the rights of freedom of expression and religion, and equality rights. Gender Equality Section 28 states that all rights and freedoms under the Charter must be given to men and women equally.

THE CHARTER AND ABORIGINAL PEOPLES

Section 25 states that the rights set out in the Charter are not to be interpreted in a way that would take away or reduce aboriginal, treaty or other rights and freedoms pertaining to aboriginal people. The courts treat this section as a simple shield for aboriginal rights. This section has not been successfully used to create new rights. Section 35 is not actually part of the Charter but is contained in the Constitution. It affirms and recognizes aboriginal people's rights. However, the courts have interpreted this as only affirming rights that existed in 1982 when the Charter was passed. This section cannot be used to revive rights that were extinguished before 1982. This section also states that aboriginal and treaty rights are guaranteed to women and men equally.

LIMITATIONS ON CHARTER RIGHTS

Section 1 Section 1 states that the rights and freedoms contained in the Charter are not absolute. Sometimes an infringement of someone's Charter right is justified because it is necessary to protect the rights of others or is in the interests of society itself. For example, section 2(b) of the Charter guarantees the freedom of expression or freedom of speech. Libel and slander laws limit this right but these laws are not rendered invalid for violating the Charter. These laws are reasonable limits on free speech because they protect the rights of others. If the government can prove that a restriction it has placed on a Charter right is reasonable and justifiable in a free and democratic society, the restriction is valid. For a restriction to be justified it should limit the Charter right as little as possible. Also, whatever the government hopes to accomplish with the restriction must be, roughly equal in importance to the right in question.

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REMEDIES FOR VIOLATION OF A CHARTER RIGHT

Section 24(1) This section gives the person whose rights are being infringed or denied a method for enforcing his or her rights. The first part of section 24 says that when someone's Charter rights are violated that person can apply to a court for an appropriate remedy. The burden will be on the individual to prove that a violation of his or her rights has actually occurred. Once this is established, the government might wish to justify the violation of the right by arguing it is a reasonable limit under the terms of section 1 of the Charter. After that is accomplished the court has a wide discretion to decide what sort of relief to give. In a criminal case, the court might order a stay of proceedings. If the government caused financial loss through a violation of a Charter right, the court might order the government to reimburse the individual. Section 24(2) This section allows courts to exclude evidence that has been obtained as a result of a violation of a Charter right. This is quite a powerful remedy and is especially useful in the criminal courts. For example, section I0 (b) of the Charter guarantees those who have been arrested the right to "retain and instruct counsel." If someone is arrested but is never given the opportunity to phone a lawyer, even though the person has asked for one, then their l0(b) rights have been violated. If they then give statements to the police, it may be possible to have those statements excluded under section 24(2). In many cases, once the evidence is excluded the Crown is unable to prove the offence and the accused may be acquitted. The courts will look at a number of things to decide whether or not evidence obtained in violation of the Charter should be excluded. The essential question is whether or not the admission of such evidence would bring the administration of justice into disrepute" — would the general public lose faith in the justice system if the evidence was allowed in. Some factors that might be examined are whether or not the police intended to violate the person's Charter rights. The seriousness of the infringement and the way the police obtained the evidence might also be examined.

THE HUMAN RIGHTS, CITIZENSHP AND MULTICULTURALISM ACT

The Individual's Rights Protection Act (I.R.P.A.) was passed in 1972 by the Alberta Legislative Assembly to govern human rights protection in Alberta. The Act applied to all provincial government departments and agencies, as well as all businesses and industries under provincial jurisdiction in all facets of employment, business and tenancy policies, practices and referrals. It was replaced by the Human Rights, Citizenship and Multiculturalism Act (H.R.C.M.A.). Unless there is an express declaration by an Act of the Legislature, the H.R.C.M.A. applies to every law of Alberta. In areas under federal jurisdiction, protection is provided by the Canadian Human Rights Act which is administered by the Canadian Human Rights Commission. "Human Rights" is an umbrella term which is open to wide interpretation. However, under the H.R.C.M.A., human rights take on a specific definition. The H.R.C.M.A. prohibits discrimination in specific areas on the basis of specific grounds. The Alberta Human Rights and Citizenship Commission has a mandate to investigate those allegations of discrimination which fall within its legal jurisdiction under the H.R.C.M.A. Human rights legislation, such as the H.R.C.M.A. is founded on the premise that there is a duty to accommodate the needs of individuals from historically disadvantaged groups. This legislation has quasi-constitutional status. That is, it is fundamental law incorporating the basic goals of society, which must he given a fair, large and liberal interpretation. The aim of such legislation is not to punish offenders, but to provide relief for victims of discrimination.

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WHAT IS DISCRIMINATION?

According to the Supreme Court of Canada in the Andrews case, discrimination has been defined as: a distinction, whether intentional or not, based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individuals or groups, not imposed upon others or which withholds or limits access to opportunities, benefits or advantages available to other members of society. Discrimination is often based on prejudice. Prejudice is a particular way of perceiving and judging. A prejudiced person sees only a partial, simplified or mistaken picture and judges a person or group of persons as inferior on the basis of certain, often unfounded, ascribed objectionable qualities or characteristics. The word prejudice suggests scorn, dislike, fear and aversion, and negative and often hostile attitudes may develop. Discrimination often means avoiding a person or group because of prejudice. It is discriminatory to deny a person or group a right, such as use of a public facility, because of prejudice. Discrimination also arises when a person treats another less favourably than she or he treats, or would treat, someone else. Discrimination is any behaviour which causes a person to be treated differently from other people. Discrimination can be either a negative or a positive experience. Affirmative action programs are an example of a positive or a helpful type of discrimination. The goal of affirmative action is to help certain groups (e.g. women, people of colour and physically and mentally challenged persons) to overcome the disadvantages that have occurred because of the long history of unequal treatment. Positive discrimination, such as affirmative action, is meant to be a temporary measure. Once the disadvantage is overcome, the treatment should be the same for all people. Forms Of Discrimination Discrimination can exist in three main forms: overt discrimination, unequal or differential treatment, and systemic discrimination. Overt discrimination usually occurs when one person, or one group, deliberately treats another person or group unfairly. It is an irrational and destructive behaviour which often stems from ignorance, fear or the wish to maintain advantages over others. Unequal or differential treatment often occurs as a result of paternalism or traditional attitudes. For example, an employer may hire women but not allow them to work night shifts or in dangerous locations, and consequently pay them less than their male counterparts. This is discrimination, even if not intended as such. Systemic discrimination is subtle and pervasive. It is often present in established institutional practices. Systemic discrimination occurs when an apparently neutral policy or practice has an adverse impact on a group of people. Women and members of visible minority groups with the same education and experience consistently earn less than a comparable group of while males in similar positions. About 50% of Canadians who have a permanent physical challenge are unemployed, even though many are willing and able to work. These situations exist partly because of systemic discriminatory practices such as pro-selection testing, excessive experience requirements and physical requirements. Grounds And Areas Of Discrimination The H.R.C.M.A. is specific about the grounds and areas in which discrimination is not allowed. The grounds currently covered are: race, religious beliefs, colour, gender, physical and mental disability, marital status, age, ancestry, place of origin, source of income or family status and sexual orientation, which is not expressly stated in the Act but, as of April 2, l998, was ordered to be “read in� to the Act by the Supreme Court of Canada as a protected ground of discrimination in Alberta. The protected areas are: accommodation, public services or facilities, tenancy, employment and a number of areas related to employment, (advertisement, membership in unions or associations, equal pay). Sexual harassment has been included under the ground of gender. The Act also provides protection against retaliation, and forbids discriminatory signs and notices. Some of the grounds apply in all areas, but other grounds may apply to only some of the areas. For instance, discrimination on the basis of age applies to employment but not to tenancy or services. Defences There are two defences to discrimination relating only to the area of employment. The first is called a "Bona Fide Occupational Women and the Law 6th Edition, 2005 38


Requirement" (BFOR) and the second is the "reasonable and justifiable" defence. The BFOR defence can be found in section 7(3) and 8(2) of the H.R.C.M.A. Preferences for a job applicant calling for certain characteristics such as age, race or gender are generally prohibited. However, the H.R.C.M.A. recognizes that occasionally there may be a bona fide reason for an employer to indicate a limitation, specification, or preference on the basis of a prohibited ground in the areas of advertising and employment. Under such circumstances, an employer may request a BFOR opinion from the Human Rights Commission. Such a request should be addressed in writing to the Commission, supplying information to support the request. The Commission may give an opinion only after the merits of each request have been investigated by the Commission staff. If a favourable opinion is given, the Commission will not accept complaints against the employer concerned on the basis of the specified ground. For example, a woman correctional officer filed a complaint of gender discrimination alleging that her employer selectively deployed her away from duties for which she was trained and which she had been performing in male living units of a correctional institution. The investigation revealed that prior to her assignment a directive was issued ordering all female officers be transferred from male living units. While salaries were not affected by the deployment, potential mobility and experience were. However, the complaint was eventually dismissed, because a favourable BFOR opinion was found to be valid, allowing for the hiring of male correctional officers only to work in the male living units. Section 11.l of the H.R.C.M.A. provides a further defence to employers engaging in discrimination. A contravention of the Act is deemed not to have occurred if the person who is complained against shows that the alleged contravention was "reasonable and justifiable" in the circumstances. For example, insurance schemes classifying rates on the basis of age and gender are a violation of the H.R.C.M.A. However, a recent court case examining this scheme found it to be based on sound, accepted practice. The court found there was no reasonable and just alternative which would be financially viable, result in wide availability of insurance, and be fair. A genderless system would result in significant unfairness to young women and older men and women with much better average driving records than young men. As a result, the scheme was upheld under s.11. Age Age is a protected ground in the areas of notices, employment, trade unions, and advertisements for employment. Age is not a prohibited ground in the areas of tenancy and services. In other words, a landlord or store owner can discriminate against a potential tenant or customer because of age. Age is defined in the Act as meaning 18 years or older, so young people are not protected from discrimination based on their age. As well, mandatory retirement at the age of 65 is prohibited, subject to a BFOR. Mental Disability (Mentally Challenged) There are many specific concerns for those with a mental challenge. In particular, mentally challenged persons, their families, support groups, lawyers, law enforcement personnel and the general community have an interest in addressing the special needs of mentally challenged persons who find themselves in contact with the criminal justice system. It has been estimated that up to 25% of people incarcerated in Canada are mentally challenged. Facing criminal prosecution is especially difficult for anyone whose ability to understand the proceedings, to communicate effectively with a lawyer, to give instructions and to make decisions is impaired by mental challenge, whether in the form of mental illness, mental handicap, brain injury, other condition or disease. In 1992, the federal government attempted to address some of these concerns in its amendments to the Criminal Code. The Criminal Code provides an exemption from criminal responsibility if, at the time of the offence, the accused was suffering from a mental disorder that rendered her or him incapable of appreciating the nature and quality of the act or of knowing that it was wrong. "Mental disorder" is defined as "a disease of the mind". Several psychiatric conditions — including schizophrenia, delusions, psychosis and similar conditions — have been considered by courts to be diseases of the mind. These provisions do not indicate whether persons with mental handicaps can rely upon the exemption for mental disorder, although some argue that mental handicaps may be covered because of the way that the case law has interpreted "disease of the mind.� Physical Disability (Physically Challenged) Accessibility is a major issue for those with physical challenges. Accessibility is more than simple physical access, since it affects access to employment, other public services and information. Sensitivity to the needs of differently abled people will result in many different solutions. Section 4 of the H.R.C.M.A. prohibits discrimination in access to public facilities, services, and accommodation. Section 5 prohibits discrimination in commercial tenancies and self-contained dwelling units. Another issue of concern for people with physical challenges is the protection afforded to those carrying an infectious agent. Most commonly, this concern refers to people with HIV-positive status. The virus is not included under "physical disability" in Women and the Law 6th Edition, 2005 39


all jurisdictions, and there have been clear cases of discrimination against carriers. One example is that of an HIV-infected child in Quebec who was denied access to day care because of her HIV status. In balancing the need for protection from discrimination for those with infectious agents with the rights of others (the day care owner, for example, was facing economic hardship if clients withdrew all the other children, as they seemed prepared to do) the "reasonable and justifiable" rule could be used on a case-by-case basis. This would also provide protection by allowing discrimination in situations where the infectious nature of a disease could be a public health concern. Case law has accepted HIV-positive status as a physical disability. Therefore, it is not necessary to specify infectious agents or HIV in the definition of physical disability in the H.R.C.M.A. They are already recognized and treated as disabilities, and already covered. In both the areas of physical and mental challenges, the issue of "reasonable accommodation" is important. Reasonable accommodation means that where extra efforts must be made to provide accessibility to education, employment, services and information to disabled persons, these efforts should be made wherever possible. Marital Status The legal treatment of married couples and of the individual partners in a marriage has undergone significant change in the last 100 years. In the nineteenth century, the husband ruled the family and the wife had no independent legal status of her own. With the enactment of married women's property legislation, married women were given certain property rights, the capacity to enter into contracts and the ability to sue and be sued. The more or less equal division of matrimonial property between husband and wife, which is now required at the termination of marriage, represents a development that could hardly have been contemplated even 25 years ago. We are emerging from a period where the husband was, in law as well as in fact, the personification of the marital unit, into a period when the rights of the individual parties to a marriage are increasingly acknowledged. Marriage should no longer be a justification for the loss or surrender of rights by the female partner. Discrimination on the basis of marital status is prohibited by the 1980 International Convention on the Elimination of All Forms of Discrimination Against Women, to which Canada is a signatory, by all provincial human rights legislation like the H.R.C.M.A., and by the Canadian Human Rights Act. Discrimination on the basis of marital status includes those in common law relationships, and as of April 2, l998, includes those in same sex relationships as well. Gender and Sexual Harassment Under the H.R.C.M.A., gender is a protected ground in all areas. Despite vast improvements, women are still very much discriminated against and they have been historically oppressed, especially in employment. A large number of complaints filed under the H.R.C.M.A. are for sexual harassment which falls under the category of gender discrimination. What Is Sexual Harassment? Sexual harassment is any repeated or unwanted sexually oriented practice that endangers a woman's job, that causes her discomfort or humiliation at the workplace, or that, in any other way, threatens her economic performance or potential. However sexual harassment is expressed, it has three basic components: it is unwanted, it affects the women's work, and it is an expression of power, authority or control through sex. An unwanted sexual advance may include any activity with sexual overtones such as verbal innuendo, comments, looks, physical contact, or requests of sexual favours. Sexual harassment may be accompanied by threats of demotion or firing if the victim does not comply with the harasser’s demand, or of favours if she does. It is the fear of retaliation that has kept sexual harassment "in the closet" for so long. Also, there is the myth that the victim has in some way brought on the unwanted advances. The existence of this myth often causes feelings of guilt in the victim. The fact of the matter is, women of all ages, attractiveness and in all occupations are subjected to sexual harassment. How Widespread A Problem Is Sexual Harassment? In Alberta alone, of the 618 formal complaints the provincial Human Rights Commission received in the year ended March 31, 1993, 118 or 19%, were classified as gender-related sexual harassment.

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What Should I Do If I Am Being Harassed? Several courses are available to you if you have been harassed. First of all, you may attempt to have the matter resolved internally, before you take any other action. Many large businesses and institutions, including governments and universities, have set up special procedures for dealing with this problem. Also, your union or professional association may be able to assist you. If you have been sexually harassed, you may wish to press charges under an appropriate section of the Criminal Code, such as assault, sexual assault, threat, or intimidation. You would have to notify the police. They will investigate your complaint and determine whether there are "reasonable and probable grounds" to lay charges. If charges are laid, you will have to testify at the trial. However, the police may not lay charges without some corroborating evidence, for example, another witness. Even if the harasser is convicted, you will not receive compensation for lost wages or other expenses. A third course of action available to you is a civil action. To proceed with a civil action, you will have to hire your own lawyer. Legal Aid is not available for most civil actions, so the cost of hiring a lawyer may outweigh any benefit you might receive if your suit is successful. In order to succeed, your harassment claim will have to fit within the definition of an already recognized cause of action, such as assault, battery or intentional infliction of nervous shock. You may also sue for wrongful dismissal. In this case, you would have to show breach of the employment contract. Another course of action available is a complaint to the Alberta Human Rights and Citizenship Commission (or the Canadian Human Rights Commission if you work in a business that comes within federal jurisdiction, such as banks, airlines, and the federal civil service). Under the H.R.C.M.A., sexual harassment is not prohibited in itself, but is included under discrimination on the basis of gender. If you simply wish to talk to an investigator at the Human Rights Commission about your problem, your conversations are kept strictly confidential until you sign an official complaint form. If you decide to proceed, the Human Rights and Citizenship Commission will start by appointing a conciliator to attempt to try to reach a settlement. If no settlement is reached and the director feels there is merit to your claim or that any proposal for settlement is insufficient, the director may appoint an investigator who may talk and write to your employer and to your fellow employees. Any person who has or may have relevant information must cooperate with the investigators and provide any relevant documentation. At any time the director has the authority to decide if your complaint will be dismissed. You may request a review of the dismissal within 30 days of receiving notice of the dismissal of the complaint or notice of discontinuance. If the chief commissioner finds that "reasonable grounds" exist, the chief commissioner shall appoint a human rights panel to deal with the complaint. Evidence my be given before a human rights panel in any manner that the panel considers appropriate, and the panel is not bound by the rules of law respecting evidence in judicial proceedings. The decision of the panel is binding on both parties but may be appealed to the Court of Queen's Bench. Since the H.R.C.M.A. is not meant to punish, you should not expect a large damage award if your case is successful, however, pursuing such an action does not cost you anything. The Board may order the employer to apologize, to post notices stating that sexual harassment is illegal and/or to pay you for lost wages and opportunities, and for psychological harm. Although the definition of sexual harassment is very broad, it is not easy to prove. Employers generally deny that sexual harassment (or any other harassment) has occurred and in most cases there are no witnesses. You are most likely to succeed if other women who have been harassed by the same person are willing to come forward and testify. If you plan to pursue a complaint by laying criminal charges, by proceeding with a civil action or by laying a complaint with the Human Rights and Citizenship Commission, you should write down all the details of the incident, e.g. the time, the place, what occurred and the names of any witnesses. Equal Pay And Employment Equity Section 6 of the H.R.C.M.A. provides for equal pay for women engaged in similar or substantially similar work as men in the same establishment, unless the different rate of pay is based on a factor other than gender which would normally justify a difference. Section 6 is unique in the H.R.C.M.A. in that it permits the complainant to bring a personal action to recover the wage differential, within a certain time and amount restraints. Employment equity is a policy whereby companies will have a staff complement representing all segments of the population including women, visible minorities, Aboriginal people and persons with mental and physical challenges. Employment equity is not the same thing as affirmative action, nor does it mean quotas will be imposed. Rather, it means that, first and foremost, qualified persons in the four areas listed above will be given the opportunity to fill vacant positions. Employment equity is Women and the Law 6th Edition, 2005 41


included in the human rights legislation of other provinces such as Ontario, and Quebec and the federal government, but not in Alberta.

Pregnancy The H.R.C.M.A. states that an employer cannot discriminate against an employee on the basis of pregnancy. This ensures that a woman cannot lose her job or have the conditions of her employment affected because she is pregnant, provided that she meets the one-year minimum employment requirement (see section on Maternity Benefits in the "Women and Work" chapter). The Alberta Human Rights and Citizenship Commission has the power to investigate complaints that this kind of discrimination has taken place. Discrimination on the basis of pregnancy includes all aspects of that condition, such as appearance, physical limitations, and absence for giving birth. As well, where employee benefit plans cover absences from work caused by healthrelated reasons, a pregnant employee must be treated in a nondiscriminatory fashion. In other words, she must receive the same level of benefits, at the same cost, as other employees absent for health related reasons, for the entire period of her healthrelated absence. Religious Belief Religious belief is a protected ground in federal and provincial human rights legislation, but not all legislation recognizes all religions as valid. However, native spirituality is considered to be a religion under the H.R.C.M.A. Protection From Retaliation Individuals are protected by section 10 of the H.R.C.M.A. from any form of retaliation, such as discharge, suspension, expulsion, intimidation, or coercion. The H.R.C.M.A. specifically prohibits reprisals against any person for having lodged a complaint of discrimination with the Commission, giving evidence concerning a complaint, or affecting a complaint indirectly in its initiation, investigation or settlement. Therefore people should not hesitate to file complaints of discrimination or retaliation with the Commission.

ADDITIONAL GROUNDS AND AREAS TO CONSIDER

Criminal Record The H.R.C.M.A. does not protect against discrimination on the basis of criminal record. Various provisions dealing with criminal records currently exist in other provinces and territories and in federal human rights legislation. The H.R.C.M.A. protects the rights of employers to deny employment where the conviction could be seen as related to the employment (for example a convicted embezzler applying for the position of comptroller) through section 7(1) (3) – bona fide occupational requirements. The Right To Access And Protection Of Personal Information Right to Access and Privacy legislation has become increasingly important to women, as a result of advances in information technology that allows governments and organizations to store and manipulate large amounts of personal information. This has led to pressure on governments at all levels to regulate the collection, use and disclosure of personal information in both the public and private sector. Personal Information Protection and Electronic Documents Act (PIPEDA) The federal act that specifies how the private sector may collect, use or disclose personal information came into effect in 2000. The first stage dealt with federally regulated private sector organizations such as banks and telephone companies. On January 2004, PIPEDA extended to every organization that collects, uses or discloses personal information while engaged in commercial activities.

Women and the Law 6th Edition, 2005 42


PIPEDA now has limited application in Alberta because Alberta has passed the Personal Information Protection Act (PIPA), which is substantially similar to PIPEDA. Now PIPEDA only applies to Alberta organizations carrying out business across provincial borders or federally regulated businesses operating in Alberta. Alberta had also passed legislation, the Freedom of Information and Protection of Privacy Act (FOIPPA) to ensure access to and protection of personal information held by government departments, boards and commissions including school boards, health authorities and municipalities. The underlying principal of these acts is: (a)

to allow you right of access to your personal information;

(b)

to control the manner in which personal information is collected;

(c)

to allow you to request corrections;

(d)

to control disclosure of your personal information without your consent.

There are limited and specific exceptions to all the above principals and so the legislation provides for independent reviews of decisions made by organizations or public bodies that you feel violates your rights. You are encouraged to first deal with the institution with your request for information or complaint that your, information was handled inappropriately and if you are not successful to contact the Office of the Information and Privacy Commissioner which is the regulatory body for FOIPP, HIA and PIPA. The most convenient method of contact is the web site: www.oipc.ab.ca.

THE STATUS RIGHTS OF ABORIGINAL WOMEN

There has been no group in Canada more discriminated against through the centuries, from the arrival of the first explorers and settlers to the present day, than Aboriginal people. Statistics indicate that Aboriginal people represent an inordinately high number of prisoners in our jails. The percentage of unemployed Aboriginal people exceeds the national average. Sadly and alarmingly, there is a high, ever increasing incidence of suicides among Aboriginal youth. Aboriginal women face multiple discrimination based on the compounding effect of gender in conjunction with race. Under the Canadian Constitution, the federal government has the authority to make laws regarding "Indians" and "lands reserved for Indians." In effect, the federal government in the Indian Act defines who is and who is not an Indian and the rights of Indian status. On June 12, 1985, the federal government passed amendments to the Indian Act. Those changes or amendments altered the definition of who is and who is not an Indian. Now, many Native persons who lost their status can get it back along with all the rights that go with Indian status. What Rights Does A Status Indian Have? A status Indian has a legally recognized identity as an Indian and therefore has the right to receive specific benefits from the federal government. To have status, an Indian must be registered according to the requirements of the amended Indian Act. The main benefits of Indian status include the rights to post-secondary education, non-insured health coverage, treaty payments (if applicable), economic development assistance, some hunting, trapping and fishing rights and exemption from certain federal and provincial taxes. The main benefits of band membership include the right to reside on the reserve, the right to housing, voting privileges within the band and the right to community involvement.

Women and the Law 6th Edition, 2005 43


WHO CAN BE CLASSIFIED AS A STATUS INDIAN?

The old definition of "status Indian" under the Indian Act caused considerable controversy because it discriminated against women and children on the basis of race, sex and marital status. The status of women and children depended on the status of their husband or father. An Indian woman who married a non-status Indian lost her status as an Indian and all her rights to own, hold or inherit property on the reserve. She lost her band membership and all rights and benefits that went with it. Her children were not recognized as Indian. The Indian woman who married a member of another band had her membership automatically transferred to his band, whether she liked it or not. Consequently, if the husband was a member of a poorer band, the woman could suffer economic hardship because she would lose her rights to the riches of her own band. When a male status Indian married, he was not treated in the same way as a female when she married. If his wife was a nonIndian, she would gain Indian status when she married an Indian man with status. Their children would have Indian status. Indian women, who married and divorced non-Indian men (or even those who were deserted, separated or widowed), would not get back their Indian status or band membership. Under the "double-mother" rule, children who were born after 1951 and had Indian parents would lose their Indian status at age 21 if both their mother and paternal grandmother (i.e. father's mother) were non-status Indian. If a child was born out of wedlock to a woman who had Indian status, her child was given status. Where the father of the illegitimate child had status but the mother did not, the child did not have Indian status. If a male Indian lost his status and had his band membership taken away, his spouse and their children also lost their status and band membership. Under the amendments to the Indian Act in l985, the definition of child has been widened to include children who are born either in or out of wedlock, who are legally adopted, or who are adopted in accordance with Indian custom. Indian women who lost their status when they married a non-status Indian are entitled to be registered on the Band List as status Indians. Indian women who lost their status because their Indian husbands lost theirs are also entitled to apply to be registered as status Indians. The child of an Indian who lost her status may apply to be registered on the Band List. A parent or guardian of a child under 18 years may apply on that child's behalf. If the child is over 18 years, the child must make her own application separate from that of the parent. The application will have to be accompanied by proof of birth in a certified copy of her birth registration in long form or a certificate of live birth. The grandchild of an Indian who lost her status is not eligible for registration unless both of the child's parents are eligible for Indian status or they are already status Indians. For example, a child born of a marriage between a non-status Indian and an Indian who has lost status is not entitled to status. MĂŠtis are also not entitled to status and, therefore, not entitled to any of the benefits available to status Indians through the Department. How Do I Apply For Status? Native persons interested in regaining their status must contact their band or the nearest office of the Department of Indian Affairs and Northern Development. (DIAND).

THE LEGAL RIGHTS OF IMMIGRANT WOMEN

The following information only applies to permanent residents and not to visitors or persons with temporary visas. I Am an Immigrant. Do I Have the Same Rights as A Canadian Citizen? If you are a permanent resident, you have been given legal permission to make Canada your permanent home. Your rights are generally the same as a Canadian citizen. The following are some exceptions: Women and the Law 6th Edition, 2005 44


(1)

You cannot run for office or vote in municipal, provincial or federal elections.

(2)

Some jobs in the government service may not be open to you.

(3)

You can be deported if you commit certain crimes or for other reasons.

Can I Lose My Status as A Landed Immigrant? You may lose your status as a landed immigrant if you leave Canada intending to abandon it as your permanent home. Generally, if you are outside of Canada for more than 730 days in every five year period, it will be assumed that you have abandoned Canada as a permanent home. There are exceptions which include being out of the country with a Canadian citizen among others. At a deportation hearing, you must prove that you did not intend to abandon the country. Can I Be Ordered To Leave Canada? No matter how long you have resided in Canada as a permanent resident, you may be ordered to leave Canada permanently (i.e., deported). You may be deported for several reasons including: (1)

Health condition likely to be a danger to public health;

(2)

Falling within a class of inadmissible persons, e.g. people whom the Canadian government has reason to believe will participate in organized crime;

(3)

Engaging in terrorism;

(4)

Committing “war crimes� outside of Canada;

(5)

Committing an offence in Canada and receiving a sentence of more than six months; or being convicted of a crime that has a maximum sentence of more than 10 years; and.

(6)

Failing to support yourself or any dependent member of your family in Canada.

If an officer of the Department of Immigration and Refugee Protection is of the opinion that a permanent resident is inadmissible, she may prepare a report for the Minister. If the Minister of Immigration and Refugee Protection feels the opinion in the report is well-founded, she may direct the matter to the Immigration division for a hearing in the matter to find out whether you should be deported. You should be given the chance to present your case and to be represented by a lawyer if you want one. You may appeal the decision reached by the officer, if you apply within the time required and meet the conditions for appeal. You are entitled to a fair hearing and the opportunity to give oral evidence on any review of a decision to deport you. This right is given to you under Section 7 of the Charter which guarantees everyone security of the person. The basic rights and freedoms available to Canadian citizens are also available to anyone who must obey or be under the jurisdiction of Canadian law. You should be told your rights by the authorities, including the right to get legal counsel. Can I Sponsor My Relatives To Come To Canada? How? Every Canadian citizen and every permanent resident who is living in Canada and is at least 18 years old may sponsor certain relatives to immigrate to Canada. These relatives apply for admission in a category called "members of the family class." Relatives included in the family class who may be sponsored are (1)

spouse; common law or conjugal partners l6 year of age or older;

(2)

children who are either under 19 and unmarried or over 19 and full-time students or who have a disability;

(3)

adopted children under 19 (this does not include a child who is adopted for the purpose of gaining admission to Canada or gaining admission to Canada of any of the person's relatives)

(4)

a child to be adopted who is less than 19 years of age who is orphaned or placed with a welfare authority for adoption and who the sponsor intends to adopt;

Women and the Law 6th Edition, 2005 45


(5)

parents or grandparents;

(6)

brothers, sisters, nephews, nieces and grandchildren who are orphaned or unmarried or less than 19 years of age;

(7)

any other relative if you have none of the above and no close family in Canada.

A sponsor must sign a Sponsorship Agreement that she will provide the new immigrant with basic yearly requirements, such as food, clothing, housing and maintenance, for a period that is determined by regulation. The application for sponsorship can be refused if immigration officials think that the sponsor will not be financially capable of fulfilling the promise. The federal or provincial government could also ask the sponsor to pay back all or part of any financial help that the government must give, if the sponsor does not provide for the immigrant. In order to sponsor a family member, ask your Canada Immigration Centre for a sponsorship application kit. There is a non-refundable processing fee for applying. What Other Ways Can I Assist Friends Or Relatives To Come To Canada? Besides being sponsored as a member of the family class, relatives or friends can also apply for admission to Canada in the category of: Convention Refugees, retired persons, assisted relatives, self-employed persons, skilled workers, or general applicants. Of course, they must meet the required qualifications of each category. Each of the categories of applicants to Canada has its own qualifications and rules for admission. You may obtain information on the requirements for immigration to Canada from your local office of Citizenship and Immigration Canada or at an immigrant aid society. Is There a Cost for Immigrating to Canada? Effective February 28, 1995, the Government of Canada has introduced a Right of Landing Fee of $975. The fee applies to all applicants for Permanent Residence who are over l8 years of age at the time that they submit their Application for Permanent Residence or are named on a Sponsorship Application. The fee must be paid at the start of the Immigration application process. If an applicant who has paid the fee is not landed, the fee will be refunded. The Right of Landing Fee should not be confused with processing fees for immigration services. Processing fees are required from Visitor Applicants, as well as Immigrant Applicants, and are not refunded even if the application is refused. The federal government has developed a loan option relating to the Right of Landing Fee to assist those who do not have the money to pay and have exhausted all other loan possibilities but who can demonstrate the ability to repay the loan. How Do I Apply For Canadian Citizenship? You may apply for Canadian citizenship if: (1)

you are 18 years of age or over;

(2)

you are a permanent resident and have lived in Canada for three years before you make your application for citizenship;

(3)

you have an adequate knowledge of French or English;

(4)

you have an adequate knowledge of Canada and the rights and responsibilities of citizenship.

You may get application forms and other information by calling Citizenship and Immigration Canada (see listing under Government of Canada in the blue pages of the phone book). Along with the application form, you will be required to supply a birth certificate, photographs and documents that prove your permanent resident status. You will appear in Citizenship Court when your application is decided. If you qualify and citizenship is granted, you will take an oath of allegiance to Canada. An application takes about six months to process.

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W

omen,

M

oney and

P

roperty

Women and the Law 6th Edition, 2005

47


TAXABLE INCOME BRACKET

FEDERAL TAX RATE

COMBINED FEDERAL AND PROVINCIAL RATE

$3l,677. or less between

16%

25%

$3l,677 and $63,354

22%

32%

$63,354 and over

26%

36%

INCOME TAX

How Does The IncomeTax System Work? In general, in Canada, YOU HAVE to pay income tax on all income that you earn. The normal categories of income include: a)

salary or wages

b)

interest

c)

income from a business or a rental property

d)

pension benefits

e)

capital gains

Gifts, inheritances and lump sum maintenance payments are generally not taxable in the hands of the recipient. The total income is then reduced by certain deductions to arrive at your total taxable income. Common deductions are: (a)

pension plan contributions

b)

RRSP contributions

c)

union or professional dues

d)

child care expenses

e)

moving expenses

.Additionally, we are allowed non-refundable tax credits which are deducted from the tax calculated on your income. Typically, these tax credits are your "basic personal amount," plus amounts for a dependent spouse and tuition fees for self or children, medical expenses, charitable donations, etc. In addition to these non-refundable tax credits, there are also refundable tax credits, applicable if your income is below a certain level, such as the federal sales tax credit. The current federal system has a rate structure of four marginal tax rates: 16%, 22%, 26 %and 29% and four taxable income brackets. The taxable income brackets change each year depending on changes in the consumer price index or inflation. The marginal tax rates apply to the portion of income that falls in the income range. For example, a woman who earned $40,000 would pay federal tax at a rate of 16% on the first $3l, 677, and 22% on the income in excess of $3l, 677. If you are earning a salary, your employer will deduct income tax from your salary and pay it directly to the government. Depending on whether you earned additional income and on the amount of your tax credits, your employer may have paid the government more or less tax than you actually owe. This will determine whether you receive a tax refund or have to pay at tax time.

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Should I File An Income Tax Return? Everyone who earns income or wishes to claim a tax refund or a tax credit is obligated to file an income tax return by April 30 of each year in respect of income earned during the previous calendar year. You must also pay any tax owing by April 30. If you earned less than approximately $7,634 (according to 2003 figures) in the calendar year, you will not be liable to pay any tax. In addition, taking into account the allowable deductions and the non-refundable credits you may be entitled to, you could probably earn about another $1,000 or so without having to pay tax. Even if you have no taxable income, you may still have to file an income tax return in order to claim a goods and services tax credit, a federal sales tax credit or a refund of your overpayment of tax, Canada Pension Plan contributions or Unemployment Insurance contributions, or for other reasons. You should keep all receipts for tax credits or deductions for three years after you claim. Certain receipts do not need to be included with your return, but you must produce them if Canada Customs and Revenue Agency decides to audit you, which they may do up to three years from the date of assessment. Also, keep photocopies of the receipts you do send in. Of course, you should also keep a copy of your income tax return. How Can I Find Out More About Income Tax? Income tax information quickly gets outdated, so do not rely on this or any other general overview. Each year, Canada Customs and Revenue Agency prepares a free detailed guide to assist taxpayers in preparing their tax returns. If you do not receive this in the mail, you can pick one up at your nearest post office or the Canada Customs and Revenue Agency Office. Canada Customs and Revenue Agency will also answer questions over the telephone (see the Appendix) and will mail you additional information upon request. For more complicated questions, you should contact a chartered accountant or a tax lawyer. Information can also be obtained from their website: www.cra-arc.gc.ca. Registered Retirement Savings Plan (RRSP) Among all the allowable deductions you can make, the RRSP contribution is the one you usually have the most control over. It is an excellent way of reducing the taxes payable in any one year, while building up a secure investment for your future. You are allowed to make contributions to a registered plan up to a certain amount, depending on your income. The administrator of your plan will be able to give you more information on this. At the time they are made, these contributions are a deduction in arriving at your taxable income. Once the money is withdrawn, you will have to pay tax on it and on the interest earned, but at that time you will probably be in a lower tax bracket. If you separate or divorce from your spouse, a tax-free transfer of RRSP funds can be made from one spouse to the other. The spouse receiving the money will not have to pay tax until the funds are withdrawn, and the tax will be based on her own income level rather than that of the spouse who transferred the money. Remember that contributions to an RRSP must mature by December 31 of the year in which you turn 69 years of age. This means that the RRSP funds become fully taxable unless you transfer them to an annuity for a fixed term, an annuity for life or a registered retirement income fund. Basically, an annuity is a type of plan that pays out a fixed amount every year. You will pay tax on that fixed amount, not the full balance. Contact your accountant or plan administrator for more information. Child Care Expenses You or your spouse, the one with the lower income, may deduct actual child care expenses up to a certain maximum, in respect of children 17 or under, or over 17, if such expenses were necessary to allow you or your spouse to: 1) earn income, 2) take an occupation training course for which you received a training allowance under the National Training Act or 3) carry on research or similar work for which you received a grant. In 2003, the maximum allowable amounts were $7,000 for each child under seven years, $4,000 for each child seven to 17 years of age and $l0,000 per eligible child not yet l7 for whom anyone is entitled to claim a disability credit. You do not have to file receipts with your return, but you must keep the receipts for examination on request. Note that child care expenses include not only daycare and babysitting, but also summer camps and boarding schools. Also, this deduction is up to a maximum of two-thirds of earned income. If there is no income earned, there is no deduction. Income Tax On Separation Or Divorce You may deduct your legal expenses for making application for and enforcing an order for spousal and child support, but you may not deduct the legal expenses for the separation or divorce itself. You may also deduct the expenses to apply for an increase in the support. Finally, the spouse who has custody of the children is entitled to claim an "equivalent to married" non-refundable tax credit. Women and the Law 6th Edition, 2005 49


Spousal support is deductible in the hand of the payor (the husband) and taxable in your hands (the payee), that means you will add the amount to your income and may pay tax on it. Child support is neither taxable nor deductible.

PENSIONS

Pension programs administered by the governments of Canada and Alberta are designed to provide a certain level of income security for Canadians over 65 years of age. Old Age Security Pension: How Do I Qualify? To be eligible for the Old Age Security Pension you must be at least 65 years of age, have Canadian legal residence status (which is usually established by being a Canadian citizen, a permanent resident or by having a visitor's permit) and meet residency requirements. If you have lived in Canada for periods totaling 40 years since your 18th birthday or if you do not live in Canada but have lived in Canada for at least 20 years since your l8th birthday, you will qualify for an Old Age Security Pension. If you do not meet these requirements, you may still qualify for a partial Old Age Security Pension. As this pension is not automatically paid to you when you reach 65, you should apply for your Old Age Pension six months before your 65th birthday. Application forms are available from post offices or Government of Canada Income Security Offices. Proof of age is required. Someone can make an application on your behalf if you are unable to apply due to illness or disability. How Much Will I Receive? A standard amount is paid monthly to all recipients of the Old Age Security Pension. These benefits are adjusted every three months to reflect increases in the cost of living. The maximum pension was $461.55 per month in December 2003 for a single person. Old Age Security benefits are subject to income tax. Guaranteed Income Supplement: How Do I Qualify? If your income other than the Old Age Security Pension is limited, you may be qualified to receive a supplemental monthly payment called the Guaranteed Income Supplement (GIS) in addition to your Old Age Security Pension benefit. Your eligibility depends upon marital status and total income (exclusive of OAS). If you are a single person (which includes a widowed, separated, divorced, unmarried homemaker), who has no income other than the Old Age Pension, you are eligible for a full supplement, which was $998 per month, (in total for both OAS and the GIS ) for April to June, 2003. If you are married, or living common law and both of you receive OAS, and have a combined income under $l6,992 (exclusive of your OAS) you will receive the GIS. If you are receiving OAS and you are married or living common law and your partner is not receiving OAS, you will receive GIS if your combined income is less than $3l,584, or if your partner is not receiving OAS and between the ages of 60-64, you will receive GIS if your combined income is less than $24,336. You must apply for GIS, and it is based upon your income as reflected by your tax return for the previous year. It will be automatically adjusted yearly based upon receipt of your tax return. You do not pay tax on the GIS. Does The Government Of Alberta Provide A Supplement? The Alberta Government runs the Alberta Seniors Benefit Program which assists lower income seniors. It provides a monthly cash benefit for eligible seniors and determines eligibility for Alberta Health Insurance premium exemptions. Seniors who reside in long-term care and are eligible to receive an Alberta Seniors Benefit cash benefit will be eligible for a Supplementary Accommodation Benefit (SAB). The annual maximum SAB benefit is $4,455 ($37l.25 per month). You have to qualify for this program. For further information, contact Alberta Family and Social Services. If you are refused benefits your case can be reviewed by the Citizen’s Appeal Panel. Spouse's Allowance: How Do I Qualify? If you are between 60 and 65 years of age, are married to an old age pensioner and meet the residence requirements, you qualify for a Spouse's Allowance (SPA) if your total income is very low. There is an income qualification and you must apply for this allowance. Women and the Law 6th Edition, 2005 50


How Much Will I Receive? The spouse’s allowance is intended to provide additional income for a couple living on one old age pension. The amount you will receive depends on your combined incomes. Widows and widowers in this age bracket who have qualified for the spouse's allowance can continue to receive it if their spouse dies. In 2001, the regular SPA was $765.28 per month and the widow’s SPA was $844.88 per month. Canada Pension Plan The Canada Pension Plan is a plan operating in all parts of Canada (except Quebec, which has its own pension plan that is similar to and closely tied to the Canada Pension Plan). The plan is a contributory type; you make payments through mandatory deductions from your paycheque. Pensions from these plans are based on an individual's earnings. Anyone who is in the paid labour force and earns more than $3,500 in the year must participate in one of these plans. Employees contribute 4.95% of their salary up to a maximum of $l,801.80 per year. This is based on 2003 figures. Employers also pay an equal amount. You contribute to the Canada Pension Plan on most types of employment income earned between the ages of 18 and 70. Your employer will deduct premiums from your salary, match those contributions, and send the entire amount to the federal government. If you are self-employed, you must also contribute. Contact Canada Customs and Revenue Agency for further information. Since there is a minimum number of years for which you must have contributed in order to be eligible for benefits, those who will be in the paid work force only periodically during their adult lives should make other provisions for their retirement. Your Canada Pension Plan account follows you from job to job, regardless of how long you work at each job or how long you may be out of the paid labour force between jobs. At age 65, the pension you receive amounts to approximately 25% of your lifetime average earnings. Can I Contribute To Canada Pension Plan If I Leave The Work Force To Raise Children? No. As the law exists now, there is no provision for a person who works within the home to contribute to the Canada Pension Plan. Since the amount ultimately paid to the spouse of a contributor is only a percentage of the benefits payable to the contributor, it is best to plan for your own retirement by starting an RRSP or similar plan until the law changes. What Happens To Canada Pension Plan Credits Upon Termination Of Marriages, and Termination of Common Law and Same Sex Relationships? If you have recently obtained a divorce or annulment or separated from a “common law”/or and/or same sex relationship, you or your former “partner” (includes people in marriages, common law relationships and same sex relationships) may apply to have Canada Pension Plan credits earned during the relationship divided equally between the two of you. In other words, you can receive half the pension plan credits your spouse accumulated during your marriage and your partner will have half of yours. The following criteria for division of the credits vary depending upon the date of separation or divorce and the type of relationship: January l, l978 to December 3l, l986 – (credit splitting did not exist before January l, l978) If marriage ended in divorce or annulment, credit splitting could take place if you had lived together for three consecutive years and applied for credit splitting within three years of the date of marriage ending. After January l, l987, if marriage ended in divorce or annulment, credit splitting could take place if you had lived together for at least one year continuously, with no time limit to split the credits. If you separated and are not divorced yet, you must have lived together continuously for one year and have separated one year. There is no time limit to apply for division of credits. This also applies to common law separations; however the time limit to apply for credit splitting is four years. After July 3l, 2000, splitting pension credits was extended to persons in same sex relationships. Credits could be split after one year of separation if the application was made within four years of separation. What Benefits Are Payable Under The Canada Pension Plan? Pension benefits paid under the Canada Pension Plan are in the form of a retirement pension or Survivor's benefits. Disability Women and the Law 6th Edition, 2005 51


benefits are also available for contributors who become disabled and their dependent children. There is a child-rearing drop-out provision that gives coverage to women who leave the work force temporarily to take care of their young children. This dropout provision is of little or no benefit to women who spend most of their lives working at home or do not return to the work force. Retirement Pension: How Do I Qualify? You may apply to receive a retirement pension as early as age 60 if you have made contributions to the Canada Pension Plan in at least one calendar year. Age 65 is the earliest age you will receive full benefits. However, you can apply for a reduced pension any time between the ages 60–65. Payments are reduced by .5% each month you take your pension before your 65th birthday or you may contribute to the Canada Pension Plan until you reach age 70 when you should make application as you cannot make further contributions. The staff at your nearest Income Security Programs Office will assist you in making the choice that best suits your particular situation, but you should be sure to discuss this in advance of your 60th birthday. If you fail to do so, it could result in a loss of benefits. How Much Will I Receive? The amount of your retirement pension will be calculated by a formula, which is based on the number of years worked, and your total earnings while employed. Any credits for child-rearing, drop-out provision and pension plan credit splitting will be calculated as well. Survivor's Benefits: How Do I Qualify? If the contributor to the Canada Pension Plan was married or living with someone in a conjugal relationship, the person who, at the time of death, is the legal spouse or common law partner of the deceased and the children may be eligible for survivor's benefits. If you are a separated legal spouse and there is no cohabiting common law partner, you may qualify for this benefit. These benefits are paid monthly. The contributor must have made contributions to the plan for at least three years after her/his 18th birthday. Application should be made as soon as possible after the death of the contributor. Contact the Government of Canada Income Security Office for more information. Delay could result in loss of benefits. Alberta Widow's Pension Program The Alberta Widow's Pension Program provides assistance to widows and widowers of limited income who are between age 55 and 64. The program provides premium free Alberta Health Care and Blue Cross, extended benefits, eye exams every two years and shelter benefits. There is no similar assistance available for single, separated or divorced women between the ages of 55 and 64. How Do I Apply? To apply you will need a completed and signed application form, certified copy of your birth certificate, certified copy of your marriage certificate and a certified copy of your spouse's death certificate. If you were not born in Canada you must be a nonsponsored immigrant and you must provide a citizenship certificate or proof that Alberta is your permanent residence. You must also include a copy of your income tax return for the year prior to your application and any other financial information requested. You must apply every year to obtain this benefit. Once you are eligible, a form will be mailed to you each year around the time of your birthday. You may receive these benefits until you remarry, move out of the province, or turn age 65. For more information, contact Alberta Family and Social Services. Other Pension Plans The various levels of government and most large businesses and institutions offer their employees a pension plan as a part of an employment benefits package. If either you or your partner is a participant in any such plan, you should familiarize yourself with the details of your particular plan. Normally, the employer will match the contributions by the employee once the pension has "vested" after a certain number of years of service by the employee. If the employee dies before retirement, his or her spouse will be entitled to a survivor's pension. Part-time workers may also be eligible to join the plan. A right to a pension is considered a property asset according to the Matrimonial Property Act. This means that the part of the pension that was earned during the marriage should be shared between the spouses. The courts can order that one spouse pay the other spouse a share of the benefits as they are received upon the spouse's retirement, or it can be settled through a lump sum payment. This right may be extended to couples who reside together in a common law relationship.

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CHARTERED ACCOUNTANTS REFERRAL SERVICE

The Institute of Chartered Accountants of Alberta offers a referral service to the public. The service is free. You will be given the names of three accounting firms who are active in the area of your problem and the name of a person to contact in each firm. You should advise the accountant that you have used the referral service. You will be entitled to one half-hour of free consultation at no charge or obligation. There are three classes of accountants in Alberta: (1)

Chartered Accountants,

(2)

Certified Management Accountants, and

(3)

Certified General Accountants.

If you want to learn more about the three classes and what service each can provide for you, telephone or write each organization for information.

WINDFALLS

So You Won A Lottery: In Canada, prizes in lotteries are usually received tax free. However, any income or capital gain which you may earn from the investment of your winnings is taxable. There are two major concerns that you should keep in mind concerning windfalls: (1)

You may owe tax in some cases (such as a gift to minor children or a spouse) if you share your winnings or give gifts to others.

(2)

There may be unexpected problems if you put a child's name on the winning ticket.

If you want to share your winnings and if it is not clear to Revenue Canada that the other person has an interest in your ticket, you may have to pay tax on any income or capital gain that the other person gets from investing the share of winnings given to her. For example, you and your husband each purchase a lottery ticket. Your ticket wins; you claim the prize and the cheque is issued in your name. Since you and your husband share everything else, you always intended to share any winnings you might receive. You discuss what to do with the money and then you invest it to earn interest. Revenue Canada may tax you and not your husband on all of the interest earned because it looks like the money invested belonged to you alone. (This could also be a benefit if you are, and would continue to be, in a lower tax bracket than your husband.) Occasionally prizes are taxable. For example, if you win a payment of money for life and the charitable organization that supplied the prize has arranged for your monthly payments to be made from the purchase of an annuity, you may have to pay tax on the difference between the cost of the annuity and the amount that you receive as your winnings. Can I Buy A Ticket For My Child? A problem may arise when lottery or raffle tickets are purchased in the name of a minor. In Alberta, property belonging to minors must be held or invested until the child turns 18. If the property will require maintenance or upkeep and there are no funds available, the property will have to be sold by the Public Trustee and the money invested until the child turns 18. For example, suppose you purchase a ticket on a "dream house" in your son's name and he wins the home, the Public Trustee will become involved. Normally, the house would have to be sold and the money invested. If your son is over 14 years, he will have to consent to the sale of the property unless the Public Trustee obtains a court order to dispense with his consent. The same problems will arise where a child receives property as a gift or under the terms of a will, and there is no provision in the will to allow the executor to lease or sell the property, or to hold onto the land and pay for its upkeep until the child is 18.

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CREDIT

Credit is a great convenience in today's society. It allows you to make purchases now, and pay for them later. At the very least, credit relieves you from having to carry around a lot of cash. If you wish to obtain credit, you will have to prove that you will be able to pay off your debts. In order to keep the convenience of credit, it is important to establish a good credit rating. How Can I Establish A Good Credit Rating? Try to make regular deposits in a savings account in your own name, even if you are not earning your own salary. Make regular and prompt payments on all charge accounts and utility bills (e.g. telephone, hydro). Pay back all loans on time. Credit card services may be provided directly by a seller (e.g. The Bay) or through a third party (e.g. VISA). All credit granting organizations will check the Credit Bureau before issuing you a card and they will keep the Credit Bureau informed of your status. Therefore, it is important that your credit record at the Credit Bureau be accurate. You may make an appointment to examine your own credit file, if you provide proper identification, to ensure that the file contains correct information. If you are married, your credit rating may be linked to that of your husband. If I Am Married, Can I Get Credit In My Own Name? You will be entitled to the same consideration as a man in similar economic circumstances. If you are a homemaker or if you do not have a separate credit rating, you may have to use your husband's name. To get an independent credit rating, you should first build up a good record with your bank. The credit limit will be low at first, but it will gradually increase. Eventually you will be able to apply for other credit cards. What Should I Do If My Credit Cards Are Lost Or Stolen? Call the organization immediately; the toll free or local numbers will be listed in your directory. It is a good idea to write down your credit card numbers and their toll-free phone numbers and keep them separate from your cards. Depending on the terms of the agreement you sign, normally you will be liable for the first $50 of charges. If you delay, you may be responsible for a greater amount. Some organizations require that you notify them in writing if your credit cards are lost or stolen. A notice sent by fax, telex or telepost should reach the organization quickly. How Can I Get A Loan? There are two basic types of loans: secured loans and unsecured loans. When you obtain a secured loan, you put up a valuable item (e.g. a vehicle) as collateral or security. This means that you keep possession of the item, but the lender has a lien on the item until you pay back the loan. If you fail to make payments on the loan, the lender can seize the item which was put up as collateral. You may be able to obtain a secured loan at a lower interest rate than an unsecured loan, because when you obtain an unsecured loan, the lender has only your promise to repay. Generally, loans from your employer, credit union, cooperatives and trust companies offer the best terms; that is, lower interest rates and variable repayment periods. Chartered banks usually demand higher rates than credit unions and trust companies. Finance companies ask for extremely high repayment rates, and should be avoided if at all possible. Certain life insurance policies allow you to borrow money on the policy at a low interest rate. In any event, you can always get a cash advance on your policy. The amount of the advance will depend on how many premiums you have paid. This money will form part of your taxable income. You may use your bank credit card (e.g. VISA) to obtain a cash advance, but the interest charges are very high. What If I Am Asked To Co-Sign A Loan? When you co-sign a loan, you have promised that you will be responsible for the entire amount if the original borrower fails to make payments. Often, you are asked to co-sign a loan for a spouse or a teenager. Make sure that you are both willing and able to repay the loan before co-signing it.

Women and the Law 6th Edition, 2005 54


Remember when you co-sign or guarantee a loan, you are entering into a contract with the person or company who lends the money. If you and your partner or spouse separate, it is not enough for your partner or spouse to give you an oral or written agreement that he will pay back the debt which you co-signed. You must obtain a release from the creditor. The release should be in writing. For example, your separation agreement states that your husband will be responsible for all unpaid loans for which you had cosigned. If you do not have a written release from the bank and your husband neglects to pay those debts or declares bankruptcy, the bank could sue you for the debt. You would then have to sue your husband for the money and it may be impossible to collect it. Even if you cannot collect from him, the bank would be entitled to collect from you. What If I Have Too Many Debts? To maintain a good credit rating and avoid having to declare personal bankruptcy, you should make every effort to sensibly manage your debts. If you are deep in debt, it is wise to reduce living expenses, if possible, to speed repayment. You might want to get a second job for a while and stop using your credit cards until you are financially stable. Consolidation or refinancing may be a good idea if you can get a lower interest rate and a comparable repayment period. For example, it is a good idea to obtain a low interest rate loan to repay several high interest rate credit card debts, provided that you do not use your credit cards until the consolidated loan is repaid. Get further details from your bank loans manager if you are considering this. Another possibility is to join the "Orderly Repayment of Debts" program offered by Alberta Consumer and Corporate Affairs. They offer financial counselling and will help you plan a budget and get your creditors' agreement to a repayment plan.

PROVINCIAL COURT, CIVIL DIVISION

What Is Provincial Court. Civil Division? Provincial Court, Civil Division is part of the provincial court system. It is designed to hear and to settle disputes involving small amounts of money. As of 2004, the maximum amount was $25,000. The procedure in Provincial Court, Civil Division is less formal than in other courts, and individuals often handle the case themselves rather than hiring a lawyer. What Actions Can Be Brought To Provincial Court, Civil Division? You cannot sue in Small Claims court if the amount you are trying to recover exceeds $25,000. You may bring an action for an unpaid loan, an action to recover a damage deposit or for non-payment of rent, or an action to recover damages arising out of a car accident. You must always keep in mind that you must sue within a specified period of time known as the limitation period. For example, an action for damages arising from a car accident must be brought within two years from the date of the accident and an action for an unpaid debt must be brought within two years from the date when the debt was due or demanded. You should check with a lawyer or Legal Aid office to determine if the period of time in which you may sue has expired. Before proceeding with an action, you should think about whether it is worth suing or not. Some questions to ask yourself are: (a)

Even if my suit is successful, will the other party pay or will I have to take further action in order to collect?

(b)

Do I have enough evidence to prove my case?

(c)

Will the cost of suing be greater than the amount 1 am suing for?

What Is The Procedure In Provincial Court. Civil Division? To start an action, you must go to the Provincial Court, Civil Division to fill out a form called a civil claim. The clerk should be able to help you. You must know the proper identification of the person you are suing, i.e., is it an individual or a company you are suing? You should also know the addresses and phone number of both plaintiff and defendant. (If you are the person who starts the legal action, you are called the plaintiff on the claim.) The claim must include the reasons why you are suing and the amount you are asking for. A claim must be served. You can give the claim in person or serve it by double registered mail. After the claim has been served, you must fill out the Affidavit of Service which is on the back of your copy of the claim. The Affidavit must be sworn by a Commissioner of Oaths and must be filed at the Provincial Court, Civil Division. At this point you will have been notified by the Court of the option of settling your claim through the mediation process, and Women and the Law 6th Edition, 2005 55


you will be able to meet with the defendant and a judge of the Civil Division of Provincial Court or a volunteer lawyer and attempt to resolve your dispute at an informal meeting. In preparation for going to trial, contact any witnesses and gather all evidence that will help prove your case; for example, a written contract, if there is one, cancelled cheques, receipts, accident reports, or estimates for repair work. The person you are suing, who is called the defendant, will also be able to present any evidence that will help her defence and bring witnesses. Both you and the defendant will have the chance to question your own witnesses and to cross-examine the other person's witnesses, so you should prepare questions for the witnesses and arguments for your case. Can I Claim Interest On Money Owing To Me? If you get judgment for payment of money, the court can make an order that you are to be paid interest from the date that the debt arose to the date of the judgment. The interest rate will be set every year by legislation. The court will have the right to refuse to order interest or to set the award for interest at a higher or lower rate than set by the legislature, if the court finds such variation to be proper in your particular situation. Section 6 of the Judgment Interest Act allows you to seek interest on the amount of a judgment awarded by a court at interest rates set by the provincial government for each year that the debt or any part of it remains unpaid. Can I Appeal The Decision If I Lose The Action? If you lose the action, you may appeal the decision to the Court of Queen's Bench. You may have to hire a lawyer at this stage, and it could be expensive. There are time limits for starting an appeal. You must file a Notice of Appeal with the clerk at the Provincial Court office and serve it on the other party. You must also pay $100 security for costs within 30 days from the day that judgment was given. Contact your lawyer or Legal Aid Clinic for more information. If you win your suit but the defendant will not pay, take the Certificate of Judgment to the Clerk of the Court of Queen's Bench. The Certificate will be filed as a Queen's Bench Judgment. You may proceed to collect on the Judgment by garnisheeing the debtor's wages or by obtaining a writ of execution which allows the sheriff to seize and sell some of the debtor's property. Both of these procedures may be time consuming and you must know how the debtor is employed or where the assets you wish to seize are located.

WELFARE

Where Does It Come From? Most of the social assistance in Alberta comes from the Provincial Government. The federal Department of Indian Affairs and Northern Development (DIAND) is responsible for administering the assistance program for all persons who live on Indian reservations and to Indians with treaty status who live off the reservation but who are classified as unemployable. In Southern Alberta, the Indian Bands administer their own Social Assistance program with money provided by the federal government. The Department of Indian Affairs and Northern Development (DIAND) monitors the program. Who Can Apply For Social Assistance? Anyone who lives in Alberta and who is in need may apply for provincial social assistance. People designated by Alberta Family and Social Services as “Persons in need of assistance” will receive assistance sufficient to pay for basic necessities for the person and the person’s dependents. “Persons in need of assistance” are people who because of age or physical or mental disability are unable to work, or are people who are mentally and physically able to work but cannot because they have custody and care of a dependent child under such circumstances as to be incapable of earning an income sufficient to pay for basic necessities people who are capable of being employed but are not ready for employment or training , people who would benefit from rehabilitative services, and people who are actively looking for work and who are willing to take a job. You must provide proof from your doctor of your illness or disability. The social worker who handles your case will provide you with the proper form for your doctor to fill out. Women and the Law 6th Edition, 2005 56


If you are living with your husband or in a common law relationship (which would include a same sex relationship) only one application should be made. The total assets and earnings of both of you would be taken into account to decide if you are in need. A woman who is denied assistance because she is considered to be living common-law may appeal that decision. She will have to show that her relationship is not that of "husband and wife." If the woman is not living in a common-law relationship, only her assets and earnings are considered. How Do I Apply For Assistance? A social worker can establish whether you will be eligible or not. If you are eligible, an interview will then be arranged and a home visit may be scheduled. When you apply, you must be prepared to establish your need for assistance. You must make formal statements disclosing your assets and your income. In order to establish need you may have to produce the following documents: Birth certificate, Marriage certificate, Divorce or separation papers, Statement of earnings, Income tax returns, Medical reports Homeowner documents, Rent and utility receipts, Bank statements. While you may feel that the information required is too personal, the government views this information as essential to pinpoint the problems and needs of each applicant. If you refuse to cooperate, your application may be turned down. What Determines My Eligibility For Assistance? The major factor in determining eligibility is your inability to provide yourself and your dependents with basic necessities but other factors may be considered. The government feels that you have a responsibility to pursue every income source available to you; therefore, you must have exhausted all other sources before you apply. An area of particular interest to women is that of maintenance. The government takes the view that a woman's right to receive maintenance for herself and/or her children is a potential source of income. If you are separated or divorced, you will be encouraged to apply to the courts for alimony, maintenance or child support. If you choose not to take legal action, the government may take over your right to sue for spousal support or child support while providing social assistance to you. You need not be penniless to apply for assistance as the Social Development Act allows you to be eligible even if you have a certain amount in assets or income. If your employment income is not enough to provide you with the necessities of life or if you are waiting for a pay cheque, you may be entitled to receive income supplements or other assistance in the form of assistance in obtaining employment, vocational, technical or any other training prescribed by regulations. What Does Assistance Cover? The basic necessities of life such as food, clothing, shelter and utilities are all provided by social assistance. Medical and dental care and drugs may also be provided. If you are unemployable, you may receive a recreational allowance for any children as well as daycare, transportation, school supplies, laundry, and burial expenses, financial assistance for daycare will be made only to approved facilities or homes. Your social worker should be able to advise you on how to obtain the necessary approval, but generally, approval means that the facility or home must be licensed for daycare purposes. The persons or facility receiving payment for daycare services will have to report to the Canada Customs and Revenue Agency, any income received from social assistance for the daycare services. In special circumstances assistance may be provided for appliances, seasonal clothing, and furniture. There is a general emergency assistance provision for special circumstances which may arise, but if you are given money under that provision, you may be required to pay it back. You will also be required to pay back any damage deposit made by social assistance on your behalf for your rental premises. The Social Services Department may arrange for you to attend school or a retraining program if it is directly related to employment. If you wish to attend university on a full-time basis and do not have sufficient income or savings to finance your education, you will have to make an application for a student loan. What Must I Do When I Am On Assistance? While you are receiving social assistance, you must report any and all changes in your circumstances to the Department; for example, if you find a job, if the number of dependents you are supporting changes, if your landlord changes, or if your assets change. Failure to provide complete and accurate information to the Department may result in cancellation of your benefits. Your allowance may also be varied or discontinued if you refuse to take available employment, if you have terminated employment, or if you have neglected or refused to take advantage of a potential source of income. If you are supposed to be looking for a job, you will have to provide documentation of your job search. Women and the Law 6th Edition, 2005 57


How Do I Appeal An Unfavorable Decision? Any decision made by a welfare worker or agency may be appealed by the person affected by the decision. Appeal forms are available at all welfare offices. The forms must be filled out in writing, then mailed or delivered to your welfare office. The appeal is first reviewed by the manager of the district office. If the manager refuses the appeal, it will be reviewed by a Citizen’s Appeal Committee made up of members of the community who are independent of the Department. The appeal procedure is very informal. An appeal to the Citizen's Appeal Committee must be made in writing within 30 days from the date when you received notice of the decision of the manager of the district office and of your right to appeal that decision. At the appeal hearing you may speak for yourself or have someone else speak for you, and you can bring someone along for moral support. The appeal committee must hear you within 15 days of your application. Decisions of the appeal committee are final. Even the Minister of Social Services cannot change the decision of the Citizen's Appeal Committee. If you feel that you have been treated unfairly, do not hesitate to assert your right and appeal an unfavourable decision. Between 50 and 70 percent of all welfare appeals are successful, even those taken to the appeal board by the individuals themselves.

WILLS

What Is A Will? A will is a written document in which you state, among other things, how you wish your children to be cared for and how your property is to be distributed upon your death. There are two types of wills: a normal will and a holograph will. A normal will is one that is prepared by you or someone else on your behalf and which is signed by you in the presence of two witnesses. The witnesses must also sign the will. Generally, lawyers prepare most "normal wills." Most lawyers will prepare a straightforward will for a very reasonable fee. Contact your lawyer or Lawyer Referral Service for more information. A holograph is a will which is completely handwritten and signed by the person who is making the will. This type of will does not need to be witnessed. Only those parts of the will which are in your own handwriting will be considered to be part of the will. If you use a preprinted form to make a will, you must have two people witness your signature and sign the document; otherwise if you simply fill in the blanks, initial the completed blanks and sign it, a court can only look to those parts which are in your handwriting, to determine the contents of the will. All typewritten portions will be ignored. This could mean the document, or at least some part of it, is invalid. If any part of a will is invalid, a court will distribute the portion of your estate affected by the invalid part of the will according to the terms of the Intestate Succession Act. The court will enforce the portion of the will that is valid. The Intestate Succession Act also affects the estates of persons who die without wills, it is always better to have a holograph than to use a preprinted form. Who Can Make A Will? Anyone 18 years or older who is mentally competent may make a will. However, if you are not 18, but you are: a)

now or have been married,

b)

a member of the Canadian Forces and were placed on active service under the terms of the National Defence Act (Canada),

c)

a mariner or seaman in the course of a voyage,

you may be able to make a valid will. If you are under 18, but have children, you may make a will for the benefit of your children. If you are under 18 and wish to make a will, check with a lawyer to see if you fit into one of the above categories.

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Who May Witness A Will? A valid will requires that two witnesses be present and sign the will after witnessing the testator sign the will. Witnesses are not required for a holograph will to be valid. Executors and creditors are suitable witnesses. Beneficiaries, or those named in the will who receive a gift, are not suitable witnesses. Also, a will cannot be signed by a spouse as this will render any gift to your spouse void. A will drawn up before you are married is no longer valid once you marry, unless the will was written with marriage to that very person in mind. The will must be very specific about your anticipated marriage and future spouse. It is important for you to make a new will after you marry. You should also consider a new will after a divorce, as the divorce will not invalidate an old will. Do I Need A Lawyer? If you have a complex estate, or you wish to appoint guardians and trustees for your children, you should have a lawyer advise you and prepare the will for you. However, it is not essential to involve a lawyer if you wish to make a few straightforward gifts. You can write your own will. It must revoke all previous wills, if any, and be signed by you at the end of the document and dated, unless it is a holograph and then it must all be in your own handwriting. When writing your own will, or giving instructions to a lawyer for a will, you should appoint an executor who will carry out the distribution of your property according to your instructions. If you do not name an executor, the court will appoint one. An executor is entitled to be paid for any work that she does in handling your estate. If you want to hold property in trust for children until they reach a specific age, you should name a trustee of the property. This could be the same person as the executor. If you have children who are under 18, you should appoint a guardian to care for them in your place. The trustee will administer the estate for the benefit of your children until they reach the specified age, at which time the remainder of the inheritance will be turned over to them. All property left to children must be held until they are at least 18. Therefore, you should give the trustee the authority to use the child's share of the estate to give to the guardian to use for the child's benefit; for example, education, necessities and medical care. There are strict laws affecting the way a trustee can invest or use the child's share of the estate. It cannot be squandered or given away. A lawyer could advise you further on this. What Happens If I Die Without A Will? If you die without a will, your property and possessions will be disposed of according to the Intestate Succession Act. This may not be the way that you wanted things to be done. Time may be lost and expenses incurred in trying to locate all of your possible beneficiaries. Friends or loyal employees or your favorite charities would get nothing from your estate unless they are named in a will. On the other hand, relatives to whom you may not want to leave part of your estate could benefit under the Act. Remember, the beneficiaries and their share of your estate is set by law unless you set those things by a will. If there are no eligible beneficiaries, the law requires your estate to go to the Crown (Province of Alberta) to be used for education and research purposes. Without a will, the government official known as the Public Guardian or some person you may not approve of could apply to the court to become guardian of your children who are under 18. It is important that parents of minor children have a will and name a suitable person to be the guardian of those children. You may have some property which you would like to remain in your family (or in the same state to be passed on to other people); for example, shares in a family business or heirlooms. If you have a will, you may name the persons who are to receive these things. If you do not have a will, those items may have to be sold. Many women think that, because they do not have many valuables or children, there is no need for them to worry about a will. Even if your possessions have only sentimental value, a will ensures that these valuables will be left to someone who appreciates them. Wills are particularly important for women who have children from a previous marriage, because your children could be left with nothing if you die without a will. Circumstances can change very quickly so it is wise to have a will that is up to date.

What If I Am Left Out Of My Husband's Will? If your husband, common law partner or same sex partner dies and leaves you and/or your children out of his will, you can apply for help under the Family Relief Act. The court can take part or all of his estate and give it to you and your children, but Women and the Law 6th Edition, 2005 59


any remainder will be distributed according to your husband's will. In some cases, the share that you receive may be inadequate for your proper maintenance and support. If your marriage broke down before your husband's death, you might also be able to apply for your share of his property under the Matrimonial Property Act. Consult a lawyer about this. If My Spouse Dies, Are There Any Other Benefits To Which I Am Entitled? Yes, the federal government has a program for Survivor's Benefits and Orphan’s Benefits. You apply through the office of Canada Pension Plan to receive this. Do I Have To Pay Tax On Property I Inherit? Sometimes a government imposes a tax on the value of property which is transferred from the deceased's estate to the beneficiary. This tax is called a succession duty or estate tax. Alberta has no succession duties. Quebec is the only province in Canada that still has succession duties. The federal government may charge income or capital gains tax on certain properly in an estate. When preparing your will, you should consult with your lawyer and/or accountant to find out what the tax consequences will be of different assets. Often, there are ways that you can plan your estate to reduce or delay tax that you are required to pay during your lifetime until your death. Whether or not you must pay tax will depend on what kind of property you have. If you die and your spouse survives you, it may be to his advantage for your executor to make a contribution for him to a Registered Retirement Savings Plan for the year of your death. Contribution to the plan is subject to the conditions set for RRSPs, such as how much income you earn from January 1st in the year of your death to the date of your death, and provided that the contribution is made within a certain time from the date of your death. Estate planning is particularly important for farmers. You want to ensure that after your death the farm and its assets will transfer to your beneficiaries without an unnecessary disruption of the farm operation. Some farm assets are subject to tax and others are eligible for various deductions. Check with your lawyer and/or accountant to determine if there can be a tax-free rollover of the farm and its assets or part of its assets to your beneficiaries. When Can I Challenge The Validity of a Will? Certain conditions are necessary before a court will declare a will or part of a will to be invalid. You would have to show that there was undue influence in drafting the terms of the will, or that the person making the will was mentally incompetent at the time, or that the will was not properly made. A will can also be varied, in whole or in part, under the terms of the Dependants Relief Act. In order to make a challenge under the Dependants Relief Act, you must be acting for a child under l8 years, or one who was still financially dependent on the deceased because of mental or physical disability. You must have been married to the deceased or an adult interdependent partner of the deceased. Under Alberta law, you could be disqualified from claiming assistance from your spouse’s estate, if the judge is of the opinion that the character or conduct of a dependant disentitle the dependant to the benefits under the act, However, you might still have a claim under the Matrimonial Property Act. There are specific rules for the proper signing of a will; therefore, a challenge to a will based on a failure to obey those rules should be straightforward. It is far more difficult to show that there was undue influence or mental incompetence at the time of the making of the will. Undue influence means that the person making the will did not have a real free choice when she decided how the estate would be divided. A lack of choice or free will could arise because the person was forced, badgered, intimidated, harassed, or encouraged to put certain terms or gifts in a will by someone who had a lot of emotional, mental or physical control over the person making the will. Claims of mental incompetency usually require medical evidence. Claims of undue influence and mental incompetency are very complicated and each situation must be looked at individually since no set rules will apply. What Property Should I Include In My Will? Any property which is registered in your own name or is in your sole ownership or sole possession should be included in your will. Property which is held or registered jointly in your name and the name of one or more other persons or corporations will not become part of your estate. If property is registered as joint tenants and one of the owners dies, the surviving person gets full ownership. Often, couples register their homes in their joint names. When one partner dies, the other partner becomes the sole owner of the home.

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If you have a joint bank account, you should check with your bank to find out whether the account is truly a joint account or if it is a co-ownership account. If the account is joint, the surviving partner will be the sole owner of the account upon the death of the other partner. If the account is a co-ownership account (both joint and co-ownership would allow both of you to make deposits and withdrawals and write cheques), the account will be frozen if one or all of the account holders die or become mentally incompetent. Check with your bank manager to find out what will happen to your account. Another way in which you might own property is under a tenancy-in-common. Tenant-in-common means that your share of the property is known and therefore, it can be sold, leased, willed, etc. to someone else, who will then be listed as a part owner of the property in your place. For example: you have a 50% interest in a parcel of land, your brother has 25% and your friend has the remaining 25%. All of your names and your shares would be on the title of the property as tenants in-common. You don't own a particular corner of the land; you own 50% of the whole thing. The big difference between a tenant-in-common and a joint tenant is that as a tenant-in-common you may do what you want with your interest. If the property is held jointly you cannot do this without wiping out the joint tenancy arrangement. If you leave your 50% share to your sister in your will, she will become the new owner of that share and will be entitled to be registered on title as such. If you were a joint tenant, your brother and your friend would automatically become joint owners of your share after your death. Your sister would not receive any part of the property. A lawyer will be able to advise you which one of these forms of ownership is best for you.

WIDOWED WOMEN

If your husband dies, you or the trustee of his estate must file his income tax return by April 30th of the year following his death or within six months of death, whichever is later. Any income tax returns for other years which have not yet been filed must be filed within six months of death. The date of death can effectively be considered the end of the deceased's tax year. The full amount of personal tax credits may be claimed on his behalf. If your husband supported you before his death, the married amount can be claimed to the extent that your earnings in the year of death did not exceed the allowable maximum. Similarly, if you were supporting your husband before his death, you are entitled to claim the full married amount. The proceeds of your husband's life insurance are not taxable if you received them as a result of his death. If you received money for your deceased husband's service in employment, you could exclude up to $10,000 of it from your taxable income. See your tax guide under Income From Other Sources for more details. As a spouse, you will not be required to pay capital gains tax on capital property, such as farm land, house, and livestock, transferred to you on your husband's death. This will allow you to keep the property in the family until you wish to sell it. Otherwise, you might have to sell off valuable property just to pay the large amount of tax owing.

GUARDIANS AND TRUSTEES FOR ADULTS

A dependent adult is a person over the age of 18 who has had a guardian appointed by court order because the adult is unable to take care of herself and make reasonable personal decisions. When the court finds a person to be a dependent adult, the Public Guardian or a person appointed to act as guardian becomes responsible for the nonfinancial decisions affecting that person. For example, the Public Guardian will make decisions concerning the dependent adult's living accommodations, employment, education, and health care. It is often better if a relative or a close friend of the dependent adult is appointed as guardian, because that person would be familiar with the dependent adult's likes and dislikes, opinions, religious and cultural backgrounds, etc. The Public Guardian is appointed only where there is no family or friends available or willing to act as guardian. A guardian's authority is limited to certain terms set out in the court order.

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An application can be made to the court to take responsibility for the assets and income of a dependent adult. This application can be joined to the application for guardianship of a family member or close friend. Accurate records must be kept and the court will order a review of the records on a regular basis. The trustee will be held responsible for any irregularities found in the records. The Public Trustee will assume these responsibilities in the event there is no suitable family member or close friend to assume them.

PUBLIC TRUSTEE

The Public Trustee is the government official who is responsible for all financial matters concerning unmarried children under 18 years or dependent adults. The Public Trustee is appointed trustee of the estate if there is no one else suitable who is willing and able to act as trustee. If you do not have a will and you have a spouse and children, the Intestate Succession Act sets out the portion of your estate that each of them is entitled to receive. The Public Trustee will assume the role of trustee of your children's estate (or the estate of a dependent adult), if you have not named someone in your will. The Public Trustee has a duty to see that any property which belongs to a child is protected for the child until he or she reaches 18 years of age. In some cases this means that certain land or possessions will have to be sold and the money properly invested for the child's future. There must be money available to pay any taxes, rent, maintenance or other expenses required to keep up the value of the property owned by the child. If that money is not available, the property will have to be sold. This could cause problems if the child is only a part owner of the property along with other family members. If the beneficiary is a dependent adult, the Public Trustee (or private trustee, if there is one appointed) will collect those assets which belong to the dependent adult. If it appears that the dependent adult will be incompetent for a long period of time, the Public Trustee will have to sell the assets and invest the money so that it may be used for the maintenance of the dependent adult. The Public Trustee will arrange a budget for the dependent adult and will supervise her estate. If the dependent adult becomes competent to manage her own affairs, the Public Trustee will then turn the remainder of the estate over to the dependent adult. If the dependent adult dies, all money and property held by the Public Trustee will be turned over to the executor or administrator of the dependent adult's estate. The Public Trustee is bound by law to ensure that the property owned by a minor or a dependent adult is not wasted. The Public Trustee cannot make gifts to family members of the dependent adult or minor, even if that person wishes the gift to be given. If there is enough money in the estate, the Public Trustee will charge a fee for managing the estate or trust. Every two years, the Public Trustee is also required by law to account to the courts for all of the estates and trusts that it manages. It is the policy of the Public Trustee to provide close family members or beneficiaries under a will with information regarding the assets it holds and the amount of money spent.

POWER OF ATTORNEY

What If I Am Not Physically Able To Look After My Affairs? The Public Trustee is allowed to manage only the estates of minors and dependent adults. If you become physically disabled, whether permanently or temporarily, the Public Trustee will not be able to handle your financial affairs for you. If you are physically disabled or expect to become physically disabled due to an illness or surgery or other reasons, you can appoint someone you trust to look after your financial affairs. This is called giving a power of attorney. You can give a power of attorney over all or some of your affairs. The power of attorney over all of your affairs is called a general power of attorney. It is a very broad power with very few restrictions. A power of attorney, which is limited to certain purposes, is called a special power of attorney. For example, if you give your nephew the authority to make deposits and withdrawals on your bank account, this is a special power. Your nephew who held your power of attorney would not be Women and the Law 6th Edition, 2005 62


entitled to open charge accounts in your name or enter into any other contracts on your behalf. How Do I Make A Power Of Attorney? A power of attorney is the authority given in writing by you to allow another person to enter into agreements or sign documents on your behalf. You may sometimes buy Power of Attorney forms in a stationery store. The forms must be signed before a witness and an affidavit must he made by the witness before a Commissioner for Oaths or a Notary Public to indicate that the witness saw you sign the form. A lawyer may also draft your power of attorney and witness your signature. A power of attorney does not replace a will because the power only lasts as long as you are alive and mentally competent. However, under the Enduring Power of Attorney Act, there is also available an enduring power of attorney which allows you to extend the power of the attorney to continue to act for you in the event of incompetency. You can withdraw either the power of attorney or enduring power of attorney at any time. If you die, the power is automatically invalid. If you give someone one of these types of power of attorney and later withdraw it and look after your own affairs or pass the power of attorney on to another person, you will still be bound by any contracts, agreements, or debts that the person who held your power of attorney entered into on your behalf.

LANDLORD AND TENANT

The Residential Tenancies Act is the law that governs the renting of housing and apartments in Alberta. What Does The Residential Tenancies Act Mean By "Residential Premises"? The Act covers only rental leasing of residential premises and not commercial or business leases. Most places, which a person calls home, such as apartments, houses, or even just a rented room, are included. However, the following are NOT residential premises: (a)

a mobile home

(b)

a combination of a business and living quarters

(c)

rooms in the living quarters of the landlord

(d)

a hotel or lodge

(e)

a tenancy agreement between an education institution as landlord and a student of that institution as a tenant if the tenant does not have exclusive possession of a self-contained unit

(f)

a nursing home

(g)

a senior citizens' lodge

(h)

a social care facility

(i)

a correctional institute

Who Is The Landlord? The landlord is the owner of the premises. He or she must supply whatever services have been agreed upon in the tenancy agreement. A landlord may hire a property manager to collect rent and perform the landlord's duties. The manager is an agent of the landlord and acts on behalf of the landlord. A landlord (or his agent) is not allowed to discriminate against tenants on the grounds of race, religious beliefs, colour, gender, marital status, age, ancestry, place of origin sexual preference or physical characteristics. If you feel that you have been discriminated against for any of these reasons, contact the nearest Alberta Human Rights Commission Office.

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Who Is The Tenant? The tenant rents the premises from the landlord, or from the previous tenant under a sublease. This gives the tenant exclusive possession of the premises as a home, with the right to the same privacy to which a homeowner is entitled. However, the Residential Tenancies Act and her tenancy agreement also bind the tenant. The tenant must comply with the Act, and cannot agree to give up any of her rights provided by the Act. Rental Accommodations When renting residential premises, the landlord and the tenant enter into an agreement known as a lease or residential tenancy agreement. The lease can be written, oral or implied. In any case, the terms of the agreement may not be changed except by mutual consent. It is better if the lease is in written form so that all parties may be aware of the terms of the agreement. Read the tenancy agreement carefully. It is a contract and the tenant will be bound to its terms, regardless of whether or not she has read it, unless the terms are contrary to the Residential Tenancies Act. If there is a lease which has been signed by the tenant, the landlord must give the tenant a fully signed copy of it within 21 days after the signing. Even if the agreement is verbal, the landlord and the tenant are still bound by the Act. The agreement should spell out the service the landlord is going to provide. This includes such things as storage rooms, laundry facilities and parking spaces. These services may be included in the rent or there may be a separate charge.

TYPES OF TENANCY AGREEMENTS

The tenancy agreement may be one of two types: (a)

Periodic Tenancy: a periodic tenancy is one without a predetermined expiry date. .Without proper notice to end it, the tenancy continues. An example is a standard month to month tenancy, which requires 90 days notice by the landlord and 60 days notice by the tenant, given on or before the first day of a tenancy month, to end it.

(b)

Fixed Term Tenancy: when there is a fixed tenancy, the tenant agrees to rent the premises for a certain length of time for a certain amount of rent. At the end of the term the tenancy expires. No notice to leave is required at the end of the term; however, many tenancy agreements include a clause that says notice is required.

If the tenant remains in the premises at the end of the term, a periodic tenancy will be implied if the tenant pays and the landlord accepts the tenant's payment. The periodic tenancy will continue until proper notice for a monthly periodic tenancy has been given, by either the landlord or tenant, to terminate the tenancy. Who Is Responsible For Paying The Rent? The person who signs the agreement as tenant is responsible for paying the rent. If more than one person signs, the landlord can generally require one, some, or all of the persons to pay the whole rent. If you have signed a lease jointly with someone else, the landlord can expect you to pay the rent, even if you move out before that other person. Make sure that you give the proper notice to the landlord that you intend to end the lease arrangement. If your lease does not contain any details about proper notice, the Residential Tenancies Act will determine what notice must be given. If proper notice is not given, you may be responsible to the landlord for the rent until you meet the legal requirements about notice. When Must Notice Be Given? Notice must be given in writing and signed by you or someone on your behalf stating the day when you intend to vacate the premises and the address of those premises. The amount of notice will depend on whether your agreement is for a weekly, monthly or yearly period. Normally, you have to give one month's notice. There are also notice provisions which your landlord must comply with, if she wishes to terminate the agreement. Unless you have a lease, the landlord normally has to give you three months' notice to get you to move out. She need not give any reason. However, if she has a reason, such as you are not paying rent or damaging the apartment, then she can get you out much sooner. Contact your local Landlord and Tenant Advisory Board for further information. Remember that the terms of a lease must allow you the basic rights, benefits and protections granted to tenants under the Residential Tenancies Act. If you have been employed by your landlord in some capacity such as manager or caretaker, both you and the landlord are entitled to receive whichever notice is the longest, the Women and the Law 6th Edition, 2005 64


notice required by your agreement, or the notice required under Alberta laws such as the Employment Standards Code. Does My Landlord Have To Give Notice Of Rent Increases? Yes. Your landlord must give you 90 days' written notice for any rent increases unless your rental agreement requires the landlord to give you longer notice. In that case you will be entitled to the longer period of time. If you disagree with the rental increase, you must give notice to your landlord (on or before the date when the rent increase is to become effective) that you intend to end the rental agreement. If you do not do so, the landlord is allowed to assume that you do not dispute her right to the increase. Can My Landlord Enter The Premises? Your landlord cannot enter the premises without lawful consent, unless an emergency requires her to do so or you have abandoned the premises. Otherwise, you must receive written notice at least 24 hours before the landlord intends to enter. The notice must state a reasonable time for the entry. The time must be between 8:00 a.m. and 8:00 p.m. Monday through Saturday, except holidays. The landlord cannot enter the premises on any holidays, Sundays, or alternate designated religious days. The landlord is allowed to enter the premises to inspect the state of repair, to make repair and to show the premises to potential tenants, purchasers, or mortgagees. If you have given notice that you intend to leave, the landlord may show the premises to potential tenants. Do I Have To Pay A Security Deposit? It is up to your landlord whether or not you must pay a security deposit. However, most tenancy agreements require the tenant to pay the landlord a security deposit. This is commonly called a "damage deposit" and is held by the landlord. It is used to pay for any damage that the tenant agrees to be responsible for in the tenancy agreement. The deposit cannot he more than the equivalent of one month's rent. Of course, the amount can also be less. The landlord may not ask the tenant to pay an increase in a security deposit. The security deposit must he placed in a trust account and interest must he paid to the tenant. The landlord must deposit the security deposit into a trust account for the tenant within two banking days of receiving the deposit. That account is only for security deposit monies, and the landlord cannot use the account for any other purpose .The tenant is entitled to annual interest on the security deposit. The percentage interest will be set out in the regulations that accompany the Residential Tenancy Act and may change. The landlord is required to find out what the rate is. The landlord and tenant can agree to a higher rate of interest than the Act requires, but not a lower amount. Within 10 days after you end the agreement and give up possession of the premises, the landlord must give you that portion of the security deposit which you are entitled to receive, plus any interest earned on the money that has not yet been paid to you. However, the landlord can withhold some or all of the security deposit money for damage done to the premises by the tenant that is beyond "normal wear and tear." Normal wear and tear is defined in the Act. It says that normal wear and tear means the deterioration that occurs over time with the use of the premises even though the premises receive reasonable care and maintenance. Tenants should ensure the premises are very clean when they leave and there is no excessive damage of which the landlord has not been notified. The landlord can only withhold damage deposit if an inspection has been performed prior to the tenant occupying the property. You are entitled to a copy of this report. Then a comparison is made to determine damages. If there has been no prior inspection there should be no reduction to your security deposit. If there is damage and the landlord has made a deduction from the security deposit, the balance of the deposit and a statement of account showing the amount of the deposit used by the landlord is to be given to the tenant within the ten-day period. Remember, the landlord cannot make a deduction for normal wear and tear. Sometimes it may be impossible to determine the exact amount of the damages within the ten-day period. In such cases, the landlord is required to give an estimated statement of account to the tenant and return the balance, if any, to the tenant within the ten-day period. A final statement and balance, if any, must be returned to the tenant within 30 days of the date the tenant gave up possession of the premises. If the landlord fails to comply with the above requirements, the tenant may commence an action in court to recover the security deposit. A tenant can sue for the return of the damage deposit and interest in Provincial Court, if the amount is less than $4,000. The tenant must pick up a civil claim form, dispute note, and Affidavit of Service from Provincial Court. Civil Women and the Law 6th Edition, 2005 65


Division. There is a cost for this. Inquire at the Provincial Court for the current cost. The limitation period in the Residential Tenancies Act is 12 months from the time the alleged problem arose. Can I Change The Locks In My Apartment? Neither the landlord nor the tenant can change or add locks to the premises without the other person's consent. However, if the landlord has changed the locks to any part of the premises to which you should have access, the landlord must give you a key as soon as the change is made. If you get a court order for exclusive possession of the rental premises and to restrain your spouse or common-law partner from entering the premises, you should obtain the landlord's consent before changing any locks. A tenant is also required to leave a key with the landlord as soon as any change is made. Failure to leave a duplicate key is a substantial breach of the tenancy agreement and the landlord has the right to evict the tenant. You are permitted to put a nonlocking chain on the door. The chain should be a type that may be installed and removed without damage to the premises or one that you will leave attached when you vacate the premises. What If I Have A Dispute With The Landlord? The Landlord and Tenant Advisory Board is made up of volunteer members appointed by the city or town council to advise landlords and tenants in tenancy matters, to receive complaints and mediate disputes between landlords and tenants, and to give out information to landlords and tenants, concerning rental practices, rights and remedies. If you have a dispute with your landlord or if your landlord has one with you, an application for relief may be made to the Provincial Court. Civil Division. Contact the Landlord and Tenant Advisory Board for further information.

OCCUPIERS' LIABILITY ACT

Do I Have Any Responsibility For Visitors On My Premises? Yes. Under the Occupiers' Liability Act, you may be responsible for injuries to a person who is lawfully present on your property or on property over which you have control. You have a duty to every visitor on the premises to take reasonable care to see that that person is reasonably safe while using the premises. It may not be enough to put a warning on your property to keep you from being legally liable for any injuries. For example, if you invite someone to your home and that persons slips on a loose carpet and breaks a leg, you could be liable and have to pay compensation to the person. Do I Need Insurance? Yes. Your landlord will carry insurance that will cover damage to the property itself. However, this will not include your personal possessions. Also, if someone who has been hurt on the property sues you, you will need separate insurance to cover this. Tenant's insurance is relatively cheap and covers these situations and will cover your own possessions. This type of insurance usually covers thefts for vehicles if car insurance will not cover the theft, so it is worthwhile.

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EMPLOYMENT STANDARDS CODE

What Is The Employment Standards Code? The Employment Standards Code sets out the minimum provisions that apply to Alberta employees and employers under provincial jurisdiction. The Alberta Human Resources and Employment, Employment Standards administer the Code. Does The Employment Standards Code Apply To Me? Most Alberta employees are covered by the Employment Standards Code, including full-time, part-time, casual, commissioned and salaried workers, piece workers and students. There are, however, important exceptions and not all types of workers may be eligible for all the benefits provided under the Code. You are not covered by the Code if your employment is covered by the Public Service Employee Relations Act (employees of the Government of Alberta or non-academic staff at colleges, technical institutes and universities), the Police Act or federal legislation. Employees of the federal government come under the Public Service Staff Relations Act. Other employees under Federal jurisdiction come under the Canada Labour Code, which covers federally regulated industries such as airlines, chartered banks, railways, radio, television, and cable stations, post offices, interprovincial trucking companies and grain elevators. The Code applies only in part to farm or ranch employees and domestic workers. What If I Am Covered By A Union Collective Agreement? The minimum standards established by the Employment Standards Code apply to collective agreements. The provisions in the collective agreement must at least equal these minimum standards. In other words, the collective agreement may give you more benefits, but it cannot give you less. If you are represented by a union and have concerns about your rights and entitlements, you should contact your union representative as a first step. As a second step, if your concerns are not dealt with through the union, you can contact your nearest Employment Standards Office. Does My Employer Have To Give Me A Statement Of Earnings? At the end of every pay period your employer must provide each employee with a statement of the hours worked, the wage rate, the wages paid, any overtime paid or "time off" given in place of overtime, any vacation pay received, any general holiday pay, severance pay, all deductions and the pay period that the statement covers. Is There A Minimum Wage? Yes. The provincial government regularly sets a minimum wage which can be paid by employers to their employees. Your employer must not pay you less than the minimum wage unless you are within a special group of employees, such as disabled persons and children, and your employer has a permit to allow her to pay you those lower wages. Without the permit, your employer has no right to pay you less than minimum wage. Should I Receive Payment For Overtime? The hours you work beyond eight hours a day or 44 hours a week, whichever is greater, are considered overtime hours. Overtime hours are paid at a rate of l..5 x by the employer. You may receive time off work in place of overtime pay if you and your employer agreed to this arrangement in writing. The time off will be equal to the number of hours of overtime that you worked. The time off in place of overtime worked must be given within three months of the end of the pay period when you earned the overtime within. What Rest Am I Entitled To? You cannot be required to work more than 12 consecutive hours in any one-day. Generally speaking, with some exceptions, employees must receive a half hour rest period, which could be paid or unpaid, during each shift in excess of five consecutive hours of work. An employer must provide at least one day of rest in each week. Rest days may be accumulated up to four weeks and given as consecutive days off within this four-week period.

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What About Vacations And Vacation Pay? Employees are entitled to a minimum of two weeks vacation each year, with pay after one year to four years of employment and three weeks paid vacation after five years of employment with an employer. Monthly paid employees receive vacations with pay based on their monthly salary. Employees paid other than by the month are entitled to four per cent of their regular wages for vacation pay and 6% after five years. At the written request of an employee, the employer may grant the employee's annual vacation in periods of not less than one day. The employer has final approval of the time when the annual vacation is to be taken. What Other Holidays Should I Be Allowed? There are nine statutory holidays or General Holidays in every year and every employee is allowed these holidays. The General Holidays are New Year's Day, Family Day, Good Friday, Victoria Day, Canada Day, Labour Day, Thanksgiving Day, Remembrance Day, Christmas Day and any other day designated by the employer or by regulation. If you work 30 days in the 12 months before a General Holiday and the General Holiday occurs on your regular workday and you are not required to work, you will be paid your regular day's wages. If you are required to work on a General Holiday, you must receive your daily wage plus payment of one and a half times your hourly wage for each hour worked (i.e. time and a half). Instead of the time and a half holiday pay, your employer may give you your regular pay plus another working day off with pay. If a General Holiday falls on a day that is normally your day off and you are required to work, your employer shall pay you one and a half times your regular wage for every hour that you work on that day. If a General Holiday occurs during your vacation period, you are entitled to receive an extra day of holiday. If you are employed in the construction industry or as a camp counsellor, the General Holiday pay regulations may be different. Check with your Alberta Human Resources and Employment, Employment Standards Branch for more information. Termination Of Employment Employees wishing to terminate their employment must give the employer written notice of their intent to leave of at least one week if employed more than three months but less than two years and two weeks if employed two years or more. An employer wishing to terminate employment of an employee must give written notice of termination of at least: (1)

One week if employed more than three months but less than two years;

(2)

Two weeks if employed two years but less than four years;

(3)

Four weeks if employed four years but less than six years;

(4)

Five weeks if employed six years but less than eight years;

(5)

Six weeks if employed eight years but less than ten years;

(6)

Eight weeks if employed over ten years;

(7)

The employer must pay the employee the wages that she would have earned during the notice period, or

(8)

The employer must provide a combination of written notice of termination and the wages the employee would have earned.

According to the Code, your employer need not give you any notice under certain circumstances, among which are the following: if you have worked for her less than three months, if there was a contract specifying the end of the employment, if you are employed in certain kinds of construction work, if you are temporarily laid off, if the contract of employment has become impossible for the employer to perform by reason of unforeseeable circumstances beyond her control, or if she has "just cause." Women and the Law 6th Edition, 2005 69


Provided the minimal notice provisions are met, your employer can terminate your employment without giving you any reason, according to the Employment Standards Code. However, the courts have held that, unless an employee is dismissed for "just cause," the employee may well be entitled to as much notice as may actually be necessary for her to find a comparable job. In the case of a long-term employee in a managerial position, the court might set a notice period of a year or more. The expression "just cause" can mean many things. Generally, it implies some serious and habitual misconduct on the part of the employee. You cannot be dismissed from your job because your wages have been garnished by one of your creditors, when you are on maternity leave, or by reason of discrimination, as discussed in the chapter on Rights. Other work-related topics (such as sexual harassment, equal pay and employment equity) are also discussed in that chapter. Contact your Employment Standards office or a lawyer if you have any further questions. How Can I Collect Unemployment Insurance? To receive unemployment benefits, you must meet two criteria. First, you must have suffered an “interruption of earnings”. Second, you must have a minimum number of insurable hours of employment in a period preceding the claim (the “qualifying period”). The minimum required by a “new entrant” or a “re-entrant” to the work force, is 9l0 hours. The minimum for a person who is not a new entrant or re-entrant to the work force varies with the regional unemployment rate applicable to that claimant and ranges from 420 to 700 hours. The higher the regional rate of unemployment, the lower the number of hours of insurable employment required. (Alberta usually has a lower rate of unemployment than other provinces and will likely be in the range of 700 hours). The length of time you can collect Unemployment benefits depends on how long you worked, but only up to a maximum of 52 weeks, with the exception of work-sharing benefits and maternity and parenting benefits. The rate of the benefit is 55% of your insurable weekly earnings. There are many exceptions to this benefit rate which may increase or decrease your benefit. Ensure you file your claim for unemployment benefits as soon as you stop working. A delay in filing your claim will result in a delay of payment of benefits and a loss of some of the benefits you could have been entitled to. Be sure to call your local Canada Employment Insurance Commission.

MATERNITY AND PARENTAL LEAVE AND BENEFITS

As soon as you learn that you are pregnant or adopting a child and think that you want to return to your present job after the baby is born, begin planning your leave. It is important to plan early so that you may obtain the maximum leave available to you. It is also important to know whether federal or provincial law governs your job, since the maternity paternity and adoption provisions under each are different. Also, if you belong to a union, be sure to check your collective agreement, since it may have provisions, which lengthen the period of leave you may take. To be eligible for maternity, parental or sickness benefits you must show that: your regular weekly earnings have been decreased by more than 40%; and you have accumulated 600 insured hours in the last 52 weeks or since your last claim, (this period is the qualifying period). The qualifying period is the shorter of: the 52 week-period immediately before the start date of a claim, or the period since the start of a previous EI claim if that claim had started during the 52 week period. Can I Lose My Job If I Become Pregnant Or Adopt A Child? No. If you have worked 12 consecutive months for your employer, you are entitled to maternity leave whether or not your employer consents to it. This applies to both full time and part time employees. In addition, your employer is required by law to reinstate you in the same or similar position that you had before taking leave. You must give at least four weeks written notice of your intention to return to work at least four weeks before the end of the leave. What If There Is No Job To Return To? If your employer has shut down, in part or in full, during the time when you are on maternity leave (but plans to start operations again within 12 months of the end of your leave) you are protected. In this case, your employer is required to Women and the Law 6th Edition, 2005 70


reinstate you in your former position or provide you with alternative work if this is not possible. Can I Collect Unemployment Insurance While I Am On Maternity/Paternity Leave? Yes. If you meet the requirements and you apply at the right time, you are eligible for 15 weeks of maternity benefits (for a total of 17 weeks' benefit period, of which two weeks are a waiting period without benefits). As well, there is an additional 35 weeks of parental benefits that are available to either the mother or the father of the baby or can be split between them both. This means that you could qualify for a maximum of 50 weeks of unemployment benefits. In some instances, the two-week waiting period may be waived or deferred, but only under certain circumstances. For example: if you get paid sick leave pay from your employer following your last day worked, the waiting period may be waived. If parental benefits are being shared by both parents, only one waiting period needs to be served. For example, if a 2-week waiting period has already been served for maternity benefits by the first parent, the second parent claiming parental benefits can have the waiting period deferred. In the event the second parent subsequently claims regular or sickness benefits after parental benefits, the 2-week waiting period would then need to be served. If you receive group insurance payments, you can serve the 2-week waiting period during the last two weeks that these payments are being paid. At the same time you are applying for maternity benefits, you and your partner can also apply for parental benefits. Delaying in filing your claim for benefits beyond 4 weeks from the time your earnings have decreased by more than 40% may cause loss of benefits. Try to get both your maternity leave and Unemployment benefits to start at the same time, so that you may receive the maximum amount of Unemployment benefits available to you. Your local Human Resources Development of Canada (HRDC) office will be able to answer any other questions you have about these benefits. Can I Collect Disability Premiums While I Am on Maternity Leave? Yes, you could receive up to a maximum of 65 weeks of combined sickness, maternity and parental benefits instead of the normal combined maximum of 50 weeks. In order to be eligible for the increased number of weeks, the following conditions must be met during your benefit period: you have not been paid regular benefits; you have been paid sickness, maternity and parental benefits; and you have been paid less than the maximum of l5 weeks of sickness benefits or less than 35 weeks of parental benefits. If you work while on maternity or sickness benefits, your earnings will be deducted dollar for dollar from your benefits. While on the other hand, if you work while on parental benefits you can earn $50 or 25% of your weekly benefits, whichever is higher?

EMPLOYMENT TRAINING

What Training Programs Are Available To Me? Human Resources Development Canada (HRDC) has several programs available for those who wish to be trained in a trade or retrained for another occupation. There is a priority system for accepting applicants. Those who demonstrate the highest need or desire to be retrained, as well as the potential to succeed in the program, will be accepted. A training allowance to cover expenses may be available to you. The amount will be determined by financial circumstances, such as whether or not the applicant has dependents. For more information, contact your local HRDC, found under Government of Canada in the telephone book. If you are eligible for employment benefits, you may be able to collect your benefits while you work in a training program operated by HRDC. Both the federal and provincial governments offer wage subsidy programs whereby an employer who is willing to hire and train an employee who has been out of the job market for a certain length of time may receive a government grant covering a major portion of the employee's wages. If you are someone who has not worked for a while, you might use this as a selling Women and the Law 6th Edition, 2005 71


point to a prospective employer. Contact a Federal HRDC Center or a Provincial Income & Employment Centre for more information.

OCCUPATIONAL HEALTH AND SAFETY

What Is Occupational Health And Safety? Alberta has an Occupational Health and Safety Act. Occupational health and safety is a standard set in provincial and federal laws to define hazards in the workplace and impose restrictions on employers and employees to eliminate or reduce the hazards to the health and safety of employees and all persons on the work site. Reproductive hazards are an important occupational health and safety issue because they can cause serious health problems for the workers, their families and their unborn children. How Does It Work? Every employer has a duty to ensure, as far as is reasonably practicable, the health and safety of every worker. On the other hand, workers also have a duty to take all reasonable care to protect not only their own health but that of other workers, and to cooperate with the employer in protecting health and safety. The law provides that occupational health and safety officers may enter a work site at any reasonable hour for matters relating to occupational health and safety, such as inspecting the work site, checking records, seizing materials or products or equipment that may be unsafe, making tests, taking photographs, interviewing, and taking statements from persons on the work site. The officer has the authority to order work stoppage and/or improvements until unsafe work conditions are corrected. The officer generally makes his request in writing to the employer and sets time limits for the improvement. Both the employer and the employee have a legal duty to report to the Director of Occupational Health and Safety any serious injury or accidents that have a potential to cause serious injury. The employer has a duty to investigate the situation, make a formal report, and present it to the Director. The Director can require workers to have regular medical examinations if they are employed in hazardous occupations or on hazardous work sites. Workers must not carry out any work or operate any tool or equipment on any work site if the worker believes that there is a danger present that is not normal for that particular occupation and there are conditions under which a person in that occupation would not normally carry out work. A worker must notify the employer as soon as possible of the refusal to work and the reason for the refusal. The employer must investigate the worker's report and take whatever action is necessary to eliminate the danger. A written report must be made and the worker who complained must be given a copy of the report. Can I Be Fired For Complaining About A Safety Hazard? An employer cannot dismiss or discriminate against a worker who complies with the Act. If the worker believes that the employer has discriminated against her or dismissed her because of the complaint, she may file a complaint with an officer of the Occupational Health and Safety Council. An investigation will follow. It is an offence not to comply with the Act or to make false statements to someone engaged in inspection and investigation under the Act.

Anyone found guilty of such an offence may be fined and/or imprisoned. The penalty may increase with each conviction for an offence under the Act.

Women and the Law 6th Edition, 2005 72


VOLUNTEERS

What Is A Volunteer? A volunteer is a person who provides a service for another person, an organization, or a business and who receives no financial benefits for those services. While volunteers can perform many services, such as candy-stripers in a hospital, Big Brothers, and canvassers for the Cancer Society, you may also be a volunteer in a legal sense if you do things like help your neighbour push his car out of the snow, or look after your friend's home while she is on vacation. Does A Volunteer Have Any Legal Responsibility? Yes. Volunteers have a responsibility, which is called a duty of care, to avoid causing injury to someone else through carelessness. The duty of care also means that a volunteer has a responsibility to warn others of dangers or hazards over which the volunteer has control, or to control the behaviour of someone who could injure another person and who is under the control of the volunteer. Responsibilities or duties arise from relationships between people. For example, you go to your doctor because you have a lump in your breast. Your doctor has a duty to take all reasonable care to properly diagnose your problem, to advise you of the methods of treatment available to you, and all the likely consequences of those methods. If your neighbour asks you to look after her home while she is on vacation and you agree to do so, you have the duty to make all responsible efforts to make sure that her property is not damaged or vandalized while you are looking after it. If you do things necessary to make the home looked occupied, e.g. picking up the newspapers and mail, cutting the grass, putting lights on in the home, and the home is burglarized, you should not be responsible. If you totally ignore the property or don't look after it the way a reasonable homeowner would, you may be responsible for any loss that your neighbour may suffer. When you volunteer to do something, you accept the responsibilities that go along with that position. If you offer to do something and you do it badly, you could be held responsible. Generally, if you do not volunteer your services, you can't be held liable for someone else's loss or injury. How Great Is My Duty Of Care? The degree or amount of duty that you owe to someone else will depend on the circumstances and the skill that is required for the job. It will also depend on the age, intelligence and the experience that you and the person you are helping have. An adult who volunteers to baby-sit a four-year-old will have a greater responsibility to see that no harm comes to that child than a fourteen-year-old who is babysitting a four year old. Once you offer your services, you create a relationship between yourself and the other person. If you volunteer to do a job and then abandon the job before you are finished, you could also be held responsible for any loss or injury the other person may suffer. For example, your ladies' auxiliary is taking a group of senior citizens shopping before Christmas. You are assigned to act as escort for one elderly woman. You get tired of shopping, and you leave her sitting in the shopping mall and go home. The woman wanders away alone and slips, falls, and breaks an arm. You could be sued for her injury. Does Anyone Owe Me A Duty? Yes. If you are acting as a volunteer, the person or organization for which you give your time owes you a duty to take care to make sure that you are not placed in a situation of danger. For example, if you work as a volunteer for a hospital, the hospital has a duty to make sure that you are properly instructed about your responsibilities and the limits of your responsibilities. The hospital must also make sure that you are not exposed to unsafe areas, infections, or any other risk that you are not qualified to deal with. As a volunteer, you do not have the same protection given to employees under various laws such as the Workers' Compensation Act, Human Rights, Citizenship and Multiculturalism Act and Employment Standards Act. The organization that relies on your services has the right to control your activity, to provide proper instruction and supervision for you, to make sure that the work premises and any equipment are inspected and repaired, and to warn you of any hazards associated with your volunteer work. The organization may he responsible for any injury you suffer. For example, if you are injured by a patient in a hospital while helping that patient, the hospital may be liable for your injury. Women and the Law 6th Edition, 2005 73


Under the Occupiers' Liability Act and Occupational Health and Safety Act, the organization could be held liable for your injuries if it does not provide a safe environment for you. A violation under the Occupational Health and Safety Act is an offence. Penalties can lie very severe since the maximum fine for a first offence is $500,000 and an additional $30,000 for each day that the offence continues, or imprisonment for a term of not more than six months. A second offence carries a maximum fine of $1,000,000 plus $60,000 for each day that the offence continues. Since many activities in Alberta depend on volunteers, it is important that the volunteers, the organization and anyone else who is involved be aware of their rights and responsibilities. Contact your lawyer, Legal Guidance clinic or Women’s Center clinic for further information.

Women and the Law 6th Edition, 2005 74


W

omen and

MS

arital tatus

Women and the Law 6th Edition, 2005

75


MARRIAGE

In Alberta, marriage is recognized as an equal partnership between a man and woman, resulting in duties and responsibilities to each other. From the very moment you and your partner become husband and wife, the law imposes a liability upon each of you to maintain the other, and any children of the marriage, in certain circumstances. The law also creates mutual rights and liabilities with regard to any property each of you may own. Maintenance and support provisions, as well as a division of matrimonial property, are provided to offer economic protection to the financially disadvantaged spouse upon the breakdown of the marriage. Same Sex Marriages The issue of whether marriage also includes a partnership between people of the same sex has been resolved in British Columbia and Ontario in favour of “same sex “ marriages being legal. Our present government takes the position that marriages between people of the same sex will not be granted by the Province of Alberta. In the Alberta Adult Interdependent Relationship Act, the preamble affirms the position of the Legislature of Alberta that “spouse “is a person who is married and states “it is recognized in Alberta as a fundamental principal that marriage is a union between a man and a woman to the exclusion of all others. You can be married in another province such as British Columbia, where such marriages are legally binding and live in Alberta. That poses the question, can a married, same sex couple divorce in Alberta? The Divorce Act is federal and has to be applied equally in all provinces; however, the Matrimonial Property Act is provincial legislation and has not expanded the definition of “spouse” to include “same sex” spouses. Legal Requirements To have a valid marriage in Alberta, you must comply with certain rules. In order to enter a legal marriage, the parties must be of the opposite sex, must be over the age of 18 (or 16 with a parent's consent), must be outside the prohibited degrees of relationship (you may not marry close relatives), must not be lawfully married to anyone else, must freely consent to the marriage (that is, there is no fraud, duress, mistake about the nature of the ceremony or the identity of the other partner, or insanity), and must have the capacity at the time of the ceremony to consummate the marriage. The court may dispense with parental consent to a marriage where the female under the age of 16 is certified by a physician to be pregnant or is the mother of a living child. You must purchase a marriage license, which is valid for three months. This means that a minister or a marriage commissioner must perform the ceremony within three months. Marriage licenses are available at any Vital Statistics (found under Government of Alberta in the phone book) or Alberta Motor Association office.

ENDING YOUR MARRIAGE

There are several different ways to end a marriage; they include judicial separation, divorce or annulment. Each way of ending a marriage has different legal requirements depending on the method chosen. Decisions on the division of property, custody of the children, visiting rights, terms of access and support payments must be made. You may have an informal understanding with your spouse or a written legal document called a Separation Agreement. If you and your spouse do not agree on the terms of separation, you may take the issue to mediation or to court where a judge will decide these matters. The Need For Legal Advice It is best to see a lawyer to get advice about your rights and the choices available to you when you are ending a marriage. It is best to have a lawyer to prepare a Separation Agreement, to apply for a divorce, annulment or judicial separation and, in some cases, to settle custody, access, maintenance and matrimonial property issues.

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SEPARATION

The least formal of all separation occurs when a couple decides to live apart from one another. The separation may be for a trial period only, and the couple may have no plans for divorce. In an informal separation, there is still a duty on you and your spouse to support one another and your children. The Family Court can enforce support payments required under a Maintenance Order made under the Domestic Relations Act. Unless there is a written agreement or court order for maintenance, money paid by one spouse to the other is not tax deductible and the one who receives the money does not have to report it as income. Separation Agreements A formal Separation Agreement allows you and your spouse to agree between yourselves with regard to the issues of custody, access, child support, spousal support and the division of property and thereby avoid an expensive court battle. It clarifies each of your obligations and avoids misunderstandings. The agreement is legally binding on both of you and can be enforced in court if either of you refuses to carry out your obligations. Further, it may be used as evidence of the length of time you have been separated for any future divorce. A Separation Agreement does not end your marriage. It simply outlines your rights and the obligations that you agree to accept when you separate. Since it is a legal document, to ensure that your interests are protected, advice from a lawyer is necessary. Your lawyer must be a different lawyer than the one your spouse uses. Even if both you and your spouse have basically agreed on the terms of your Separation Agreement, it is important that you are advised with regard to your rights and responsibilities. Read the agreement and review it thoroughly with your lawyer. If you have any doubts about what is written in the agreement or its effects on you, ask questions. Ensure that you understand the terms of the agreement and do not sign it if you do not agree with it. There are several clauses which may be included in a Separation Agreement which could severely limit your rights and freedom. Beware of these and discuss them with your lawyer: Judicial Separation A judicial separation is a judgment granted by the court in a procedure similar to that of obtaining a divorce. However, it is not the same thing. While the court can make an order for support, custody, access and the distribution of matrimonial property, you are not free to remarry. Judicial separations are rare, but are used in instances where, for example, a couple cannot be divorced because of religious reasons but want to be formally separated in all other aspects of their lives

DIVORCE

The present federal Divorce Act has been in force in Canada since June 1986. At the time of its enactment, the Divorce Act and related legislation brought about much needed change in six major areas: the grounds for divorce, the procedure to be used for uncontested divorces, access to the courts, the aims of support, the rights of children, and the enforcement of support, custody and access orders. Grounds For Divorce The Act establishes a breakdown of marriage as the sole grounds for divorce. This breakdown of marriage can be established in one of three ways: spouses living separate and apart for at least one year; adultery of the other spouse — that spouse must be willing to swear an affidavit admitting the adultery; or mental or physical cruelty of the other spouse. Examples of mental cruelty may include excessive drug and alcohol abuse or constant verbal abuse. The Divorce Act simplified the grounds for divorce and, for all practical purposes, eliminated conduct of the parties as a factor to be considered by the court; therefore, evidence of misconduct is no longer required. After a one-year period of separation, both spouses now have grounds for divorce regardless of conduct. The effect is to reduce the conflict between the spouses and to prevent one spouse from delaying the divorce by refusing to initiate proceedings after a marriage breakdown. Women and the Law 6th Edition, 2005 77


Due to the increasing mobility of society, under the Act, the rules with regard to residency requirements have been simplified, requiring only that one of the spouses must be "ordinarily resident" in that province for one year; that is, one of the spouses must have lived for one year in the province where she is filing for the divorce. Further, divorced spouses seeking to change a custody, support or access order granted at the time of divorce are no longer required to return to the province in which the divorce was granted. The Divorce Act allows a variation proceeding in any province where the ex-spouse applying for the change is now living, provided the ex-spouse has resided there for one year. Bars To Divorce Divorce law sets out three things you cannot do when applying for a divorce. These are called "bars" to divorce. Three of these bars are called "collusion," "connivance," and "condonation." Collusion is where you make up a story to obtain a divorce. Connivance refers to encouraging your spouse to behave in such a way as to give you grounds for divorce. For example, you cannot knowingly encourage your spouse to commit adultery. Condonation refers to forgiving your spouse for his or her behaviour; that is, if you forgive your spouse for an act of adultery and allow the marriage to continue you do not have grounds for divorce based on that one act. A subsequent act of adultery for which you did not forgive your spouse would be necessary. Applying For A Divorce Either or both spouses immediately upon separation can now commence divorce proceedings. However, the Divorce Act encourages the reconciliation of spouses and thus allows the spouses to cohabit again after separating for up to 90 days without affecting your divorce status. The Act further requires that a lawyer acting for the spouse applying for the divorce must not only determine that there is no possibility of reconciliation, but must encourage mediation of any issues under dispute. Divorce mediation is a process whereby spouses may be helped to resolve issues arising out of the divorce in a less adversarial fashion using the services of a neutral third party who is often a family law lawyer. Spousal And Child Support In making an order for spousal support, the Divorce Act recognizes that marriage is an economic partnership and that both you and your spouse must share equally the economic consequences of marriage breakdown, including any financial consequences arising from the care of the children of the marriage. A financially dependent spouse may need help to become economically self-sufficient and the courts can order support to be paid indefinitely or for a reasonable period of time, with strict limitations on the court's discretion to vary that order after the end of a fixed term. The financially dependent spouse is expected to become financially self sufficient, whenever possible. The court no longer considers the conduct of the spouses a factor in assessing support. Rather, it reviews the length of time the spouses were married, the functions of each spouse during the marriage and any previous order or agreement providing support for the spouse or the children. In making orders for custody, and access affecting the children of the marriage, the court will look to the best interest of the child as the determining factor. The Divorce Act allows the court to make an order regarding custody or access in favour of either or both spouses (joint custody), or any other person it deems suitable. This means that aunts, uncles, grandparents or other interested parties may apply for custody of, or access to, the children. (For more information on custody and access, see the section on Spousal and Child Support later in this chapter, as well as the next chapter on WOMEN AND CHILDREN.) The Act further recognizes that the spouses have a joint financial obligation to support the children and that obligation is divided between them according to their respective ability to contribute. (For more information on support, see the section on Spousal and Child Support later in this chapter, as well as the next chapter on WOMEN AND CHILDREN.) Uncontested Divorce Under the Divorce Act, you may now obtain an uncontested divorce without going to court. This means that if you and your spouse can agree (that is, if there is no dispute on the issues of custody, access, support or costs) a divorce can be granted without the necessity of a formal court hearing. The court may grant a divorce based on affidavit evidence only (i.e., the parties to the divorce do not have to go to court — only sworn written evidence is presented). Once the Divorce Judgment is obtained, the Certificate of Divorce is granted automatically after 30 days unless one of the parties appeals. Either party can then obtain a certified copy of the Certificate of Divorce as proof that the divorce is final.

Women and the Law 6th Edition, 2005 78


Uncontested divorce packages are available at local stationery stores, but independent legal advice should be obtained in all but the simplest of situations. You must fill out the documents yourself and you are responsible for having papers typed and photocopied. You must also file all the documents at the Court House with the clerk of the court. The minimum cost of any uncontested divorce is approximately $210, exclusive of any legal fees, and it takes approximately three to four months to obtain a Certificate of Divorce.

ANNULMENT

Unlike divorce or judicial separation, in which there has been a recognized valid marriage, an annulment is a ruling by the court that the marriage did not exist in law. Generally, children of an annulled marriage are still considered legitimate. Grounds For Annulment In order to be annulled, your marriage must be either void or voidable. A marriage is void or voidable usually when the parties have been legally incapable of marriage. For example, where persons are too closely related or lack the mental capacity to understand the nature of the marital commitment, or where there has not been voluntary consent to the marriage. Legal advice will be necessary to determine whether your marriage meets these or other grounds for annulment.

REMARRIAGE

It is important that women contemplating remarriage obtain proper legal advice. In each province there are laws that define and set out the legal liabilities, responsibilities and rights created between the parties upon marriage. It is not usually necessary for persons contemplating marriage for the first time to obtain legal advice. In such cases, the couple is often young with few assets and no dependents except each other. In a second marriage, however, you and your spouse may have significant assets and there may be children from the previous marriage or relations flip for whom there is a legal obligation to provide. Wills Two major areas of concern arise with remarriages. The first relates to the inheritance laws. Upon marriage, all existing wills are automatically revoked by operation of law. A number of problems could arise if you or your spouse were to die without a valid will shortly after remarriage. In such a situation, the surviving spouse would, by law, inherit all or if there are children of a previous marriage, most of the deceased spouse's estate under the Intestate Succession Act and there would be little or no benefit to other kin. These problems can be avoided if you and your partner execute wills in contemplation of, or immediately after, marriage. The law requires that upon death adequate provisions be made for the maintenance of a dependent, surviving spouse. This can be established by setting up spousal trusts in which the surviving spouse would enjoy the use and benefit of certain assets of the estate until death or remarriage, whereupon those assets would then flow back to the children from the first marriage or other next of kin. Marriage Contracts A second major area of concern relates to property claims and rights of the parties created by the marriage. The Matrimonial Property Act of Alberta provides that property accumulated during marriage must be equally divided between you and your spouse upon marriage breakdown, unless unusual circumstances exist. If you and your partner are contemplating marriage, you may wish to obtain independent legal advice and enter in to a prenuptial agreement, or marriage contract. Each of you can then set up your own rules regarding the distribution of matrimonial property upon marriage breakdown. It is particularly important that a marriage contract set out in detail the property and net worth of each of you at the time of the marriage, as that property remains exempt from distribution or claims by the other spouse (so long as it is not put in joint names). However, any increase in the value of that property during the marriage is not exempt and must be dealt with specifically in the marriage contract. Releases of dower rights, estate claims and Women and the Law 6th Edition, 2005 79


spousal support may also be included in the marriage contract, but may be disallowed by the court if independent legal advice is not obtained by each of you at the time the marriage contract is executed. (More information about this is provided in the section on Matrimonial Property.)

COMMON LAW RELATIONSHIPS

In Alberta a common law relationship has been one where a man and woman live together without being married, either by choice or because they cannot legally marry. The law with regard to common law relationships in Alberta has now been changed with the introduction of the concept of adult interdependent relationships. The new law is set out in the Adult Interdependent Relationships Act (AIRA). There is other legislation, both federal and provincial such as the Employment Pension Plans Act in Alberta and the federal Income Tax Act, that have amended the former common law definition from “a person of the opposite sex” to “a person who, immediately preceding the relevant time, had lived with that other person in a conjugal relationship” (for a period of three years or other criteria)..

THE ADULT INTERDEPENDENT RELATIONSHIPS ACT

The Alberta Adult Interdependent Relationships Act (AIRA) came into effect in June 2003. It created the legal status of adult interdependent partnerships for persons who live in relationships of interdependence under certain circumstances, whether or not those relationships are conjugal in nature. The purpose of this legislation is to further the development of equality rights in areas of marital status and sexual orientation. The consequences of having such a status are similar to the legal consequences of marriage under some 68 provincial statutes. For example, the Domestic Relations Act will allow adult interdependent partners to apply for a support order where the relationship has broken down. An adult interdependent partner is now a dependent within the Dependant’s Relief Act, which allows for someone who is not provided for in a will or by the intestacy rules to apply for money or property from the estate of a deceased person. The AIRA provides for legal recognition of the relationship between two people who are not married. In order for the relationship to be recognized by the law, the relationship must have certain characteristics that are set out in the legislation. A person is the adult interdependent partner of another person if: .

the person has lived with the other person in a relationship of interdependence for a continuous period of not less than 3 years, or

.

of some permanence, if there is a child of the relationship by birth or adoption, or

.

the person has entered into an adult interdependent partner agreement with the other person, and further that a “relationship of interdependence” means a relationship outside marriage in which any two persons share one another’s lives, are emotionally committed to one another and function as an economic and domestic unit.

People who are related to each other by blood or adoption must complete and agreement in order to be treated by the law as adult interdependent partners. In determining whether or not two persons function as an economic and domestic unit the following relevant factors are taken into account: .

whether or not the persons have a conjugal (sexual) relationship,

.

the degree of exclusivity of the relationship, do they have interdependent relationships with others,. Women and the Law 6th Edition, 2005 80


.

the conduct and habits of the persons in respect of household activities, This might include matters such as whether they live together, share rooms, share chores, are an economic and domestic unit, and the degree to which they formalize their legal obligations, intentions and responsibilities to one another. This might include matters such as whether they have completed an adult interdependent partner agreement, or the degree to which they hold themselves out to others as a couple or if they made provision for each other in a will.

Division of Property Property division can be extremely complicated when a common law relationship ends. If you and your partner separate, clearly you would own the property that you owned before the relationship and to which your partner made no contribution, but problems could arise with regard to property acquired during the relationship unless very careful records are kept of what each party purchases. The court is becoming more inclined to find ways to divide property acquired by either party during a common law relationship in a manner similar to that of a married couple. The law is much less certain here and it is best to avoid the uncertainty of having this issue resolved by the courts, if at all possible. Exclusive Possession Of The Matrimonial Home Upon marriage breakdown, under the Matrimonial Property Act, at the court's discretion, the judge may give one spouse "exclusive possession of the matrimonial home and household goods. This could be for a certain period of time, e.g., until the children are a certain age, after which time the property would be divided between you and your ex-spouse. The common law spouse in Alberta does not have the benefit of the Matrimonial Property Act upon the breakdown of the relationship. In order to receive a similar benefit, the common law spouse who does not hold title to the property might have to establish that she has a contractual interest in the property; for example, that the couple has entered into an agreement concerning the ownership in, or division of, property upon the relationship coming to an end. The common law spouse may also be able to establish an equitable interest in the property by using a legal doctrine called a "constructive trust." Where a couple has lived together in a common law relationship for a lengthy period of time, each contributing services, whether financial or otherwise, to the relationship, and the relationship breaks down, an interest in the property accumulated during the relationship may be awarded to the common law spouse who does not hold title to the property if the spouse owning the property would be unjustly rewarded as a result of the other common law spouse's work and effort over the years. A third method by which the common law spouse may pursue her rights to property is by using a legal doctrine called "proprietary estoppel�. For example, if your common law spouse has told you the house is yours, even though it is not in your name, and has encouraged you to spend your money making repairs to the house, you may have the right to obtain possession of the home. See a lawyer for further advice in this regard. Common Law Spouses And Contracts To protect yourself in a common law relationship, you should consider obtaining a cohabitation agreement which sets out what happens with regard to maintenance for the children, custody and access, as well as property division should you separate. They are usually enforceable under ordinary contract law, and at least provide some evidence of the parties' intentions. You are now able to enter into an adult interdependent relationship agreement with your partner, pursuant to the AIRA. These are new and you should seek independent legal advice before entering into such an agreement. Insurance In Alberta, the Insurance Act requires that the person for whose benefit a life insurance policy is taken out must have an insurable interest in the life of the insured. Generally, it is marriage, not living in a common law relationship, which is seen as giving the parties an insurable interest in the life of each other without the need to prove financial loss. However, you can benefit from a life insurance policy on your common law partner if you ensure that you are specifically named as beneficiary. If the insurance policy is payable to "wife," any legal spouse would collect the proceeds.

Credit Common law relationships may present problems with joint credit arrangements. Treat financial agreements between you and Women and the Law 6th Edition, 2005 81


your partner as business agreements. Be particularly cautious about co-signing your partner's loans, especially for large amounts. You will be responsible for the debts if your partner fails to make the payments, even though the relationship may have ended. Joint credit cards and joint accounts should be cancelled and closed out when the relationship ends. Pensions Common law spouses are eligible to receive a share of their partner's pension benefit when the relationship ends or their partner dies. Federal laws, governing federal pension plans, recognize a common law relationship provided you have lived together continuously for one year. In Alberta, the definition of spouse has been extended in provincial pension plans to include certain common law relationships and adult interdependent relationships. As a result, pension benefits may be available to common law spouses upon a breakdown of the relation ship under several pension acts such as the Employment Pension Plan Act, provided the necessary criteria are met. To find out if you qualify, call the Pension Plan Administration of your common law spouse's pension plan. Disputes Between The Mother And Father Of Children Of A Common Law Relationship The mother is the sole guardian of the children born in a common law relationship, unless she and the father have cohabited for at least one year immediately before the birth of the child or the parties marry after the birth of the child and the father acknowledges that he is the father of the child. However, recent court decisions regarding the rights of biological fathers are usually given joint guardianship on a fairly regular basis, especially if the father has been involved with the child on a frequent basis and has been named on the birth document. Once the biological father has obtained joint guardianship, it is a fairly easy matter to obtain rights for access. The biological father is obliged to help maintain the child and may be awarded custody if the court feels it is not in the child's best interest to remain in the care of the mother. The biological father of a child must also be notified of any intended adoption proceedings where, for example, you and your current husband wish to adopt your child from a common law relationship. Maintenance The Alberta statute dealing with maintenance claims against a biological father is the Parentage and Maintenance Act. The biological father of a child must pay maintenance for his children, regardless of whether he has access or custody rights. If the biological father refuses to pay maintenance, you can apply to the court for an order declaring paternity or for an order for maintenance for the children under the Parentage and Maintenance Act. This Act also allows you to apply for assistance for expenses related to pregnancy and delivery; however, the time within which to apply for support is limited to two years after the expenses were incurred. Please consult a lawyer for further information. Workers' Compensation Act This legislation provides for the payment of compensation to the victim of an industrial accident or, in the event of the victim's death, to her dependents. Coverage is provided for the spouse as well as adult interdependent partner. Victims of Crime Act In Alberta, the Victims of Crime Act makes provision for spouses and adult interdependent partners. Under the Act, compensation is available to a victim injured during the commission of a crime or while attempting to prevent the commission of a criminal offence. Social Assistance Living common law will have an impact on entitlement to certain social welfare payments. If you and your common law spouse are living together in a marriage-like situation, you may be treated as a married couple which may mean that only one partner, usually the man, is entitled to claim benefits, and in the calculation of entitlement, you will be treated as a single household. The reason given for this rule is that it would be unfair to married couples if unmarried couples living together were treated more favourably.

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Death If you and your children are not provided for adequately in the will of your common law spouse, and are the biological children of the deceased, you can make a claim for assistance from the estate under the Intestate Succession Act and the Dependent’s Relief Act. The Intestate Succession Act provides that partners and children of a common law relationship may make a claim against the estate of their biological father, where there is no will, if the natural father has acknowledged his paternity or has been declared to be the father in a court order and there is no widow or legal children who survive him. The Dependent’s Relief Act allows you to make application for support for yourself and your children. These acts now apply to “same sex” relationships so long as they fall under the definition of an adult interdependent relationship as defined by the Adult Interdependent Relationship Act. Tax Implications For tax purposes, Revenue Canada treats common-law relationships as though the parties were married.

MATRIMONIAL PROPERTY

The Matrimonial Property Act of Alberta sets out specific guidelines with regard to the division of property of a legally married husband and wife whose marriage has broken down and who cannot agree on the division of their assets. The Act does not apply to common law spouses. Matrimonial property is a broad term referring to any land or personal property which is acquired during the marriage by the direct or indirect efforts of one or both spouses. Personal property is anything other than land. Examples of personal property are bank accounts, savings bonds, shares in a company, interest in a pension plan, cash, stocks, motor vehicles, furniture, jewelry, dividends or receivables, or money owing to one or both spouses by some other person or entity, such as a business. The most common items of matrimonial property are the matrimonial home and the household goods. The matrimonial home is property, which is owned or rented by one or both of the spouses. This property must have been occupied as a family home and it must be a self-contained dwelling unit. Living with your husband's parents in their home would not qualify it as matrimonial property. A mobile home, a condominium or an apartment can be a matrimonial home. Household goods are personal property owned by one or both spouses and ordinarily used or enjoyed by either or both spouses and any children residing in the matrimonial home. Household goods are items used for transportation, daily household use, or educational, recreational, social or artistic purposes. Objects from boats to stamp collections to camping equipment may be classified as household goods provided that the item meets the use or enjoyment test. Matrimonial Property Orders Upon the breakdown of your marriage, if you and your spouse cannot agree on the division of your matrimonial property, and do not wish to use a mediator or have tried a mediator unsuccessfully, either of you may make an application to the court for a matrimonial property order. The court will examine all of the assets and debts that you and your spouse have accumulated since your marriage and will make an order dividing the property between you according to the guidelines of the Matrimonial Property Act. When To Apply You may make an application for a matrimonial property order at the same time as applying for a divorce, annulment or judicial separation, or up to two years following the divorce, annulment or judicial separation. You may also apply if you and your spouse have been living apart for one year or for less than one year if there is no hope of being reunited. An application may also be made by a widow or a widower up to six months after the death of a spouse provided the spouses were eligible to apply for a matrimonial properly order before the death occurred. Division Of Property By Court Order The basic principle of the Matrimonial Property Act is that property which is considered to be matrimonial property will, unless otherwise decided by the court, be distributed equally between the spouses. The presumption that the property should be divided equally has only been a part of matrimonial property law since 1979. The law now recognizes that the non-financial contributions of a homemaker entitle her to receive an equal interest in property acquired by her husband during the marriage. Women and the Law 6th Edition, 2005 83


To divide the property, the court will start by classifying each item into one of three categories: (1)

property that will not be divided, that is, it is exempt from distribution;

(2)

property that will be divided fairly (but not necessarily equally); and

(3)

property that will be divided equally.

Property which is exempt from distribution and thus not divisible between you and your spouse would include any property individually owned by either of you before your marriage, property received after the marriage as a gift to either of you, a damages award or an inheritance. Any increase in the value of exempt property during the marriage is considered to be matrimonial property and may be divided. For example, if you received an inheritance of $10,000, which was put into a savings account in your own name, the $10,000 is exempt from distribution but the interest earned on it is considered divisible. Included in the category of divisible property is property acquired by a spouse after a separation, divorce, annulment or judicial separation. Divisible property may or may not be divided equally, depending on what the court considers to be fair and just in the circumstances. Property which is likely to be divided equally is the matrimonial home. It does not matter whose name the house is in or who paid for it, the assumption is that both you and your spouse will have an equal share in that house. In deciding whether the property should be divided equally, the judge will examine the circumstances of the marriage in light of 13 factors that are set out in the Matrimonial Property Act (1)

The contribution of each spouse to the marriage and family life;

(2)

Any contribution, financial or otherwise, to a business or farm which is owned by one or both spouses;

(3)

Any contribution, financial or otherwise, to the purchase or maintenance of property;

(4)

The income capacity and financial position of both spouses before and during the marriage and at the time of trial;

(5)

The length of the marriage;

(6)

Whether the property was acquired when the spouses were living separate and apart;

(7)

Any agreement between the spouses;

(8)

A gift or transfer of property to a third person;

(9)

A previous court order;

(10)

A previous distribution of property;

(11)

Tax liabilities incurred on the transfer or sale of property;

(12)

The waste or destruction of property by one spouse;

(13)

Any relevant fact.

However, judges have broad discretionary power to decide what degree of sharing of marital responsibilities will result in an equal division of accumulated assets, for example, where a large amount of money or real estate is acquired by one spouse as a result of business activities or sole work on the farm, even though the other spouse was a full-time homemaker, the division of assets may not be equal. Further, the court has complete discretion to order a money payment, to transfer ownership of property, and to order the sale of property and divide the proceeds.

�Opting Out" Of The Matrimonial Property Act Spouses can "contract out" of the provisions of the Matrimonial Property Act. They can agree between themselves on the Women and the Law 6th Edition, 2005 84


division of their property. Such an agreement will override the provisions of the Act, but to be binding, the agreement must meet certain requirements set out in the Act. The agreement must be in writing, freely agreed to, and acknowledged by each spouse before a different lawyer. Each spouse must obtain independent legal counsel when making such an agreement so that the best interests of both are served. You and your spouse may contract out of the provisions of the Matrimonial Property Act in an agreement made in contemplation of the marriage or during the marriage, as well as in an agreement following the marriage breakdown. Exclusive Possession Of The Matrimonial Home In addition to defining matrimonial property and setting out the guidelines for the distribution of property between spouses on marriage breakdown, the Matrimonial Property Act deals with the possession of the matrimonial home. At the court's discretion, the judge may give one spouse "exclusive possession" of the matrimonial home and household goods. This means that you could be given the exclusive right to live in and use the family home for a specific period of time. When making such an order the judge considers the availability of affordable accommodation, the needs of the children, and the financial position of the spouses. Pension Benefits For many couples, the pension of each spouse will be the largest asset they will acquire during their married life. Pension benefits are considered to be matrimonial property and thus are subject to division upon marital breakdown. If you and your spouse have been married or lived in a common law relationship (and this includes “same sex “ relationships) for at least one year, upon divorce or separation, Canada Pension Plan credits earned by you and your spouse during the time of your marriage will be divided between you upon application. Provincial government pension plans also provide for a division of the pension benefit upon marital breakdown or separation, however, the spouse must apply and meet the necessary requirements. Dower Rights The Dower Act of Alberta gives married persons, both husbands and wives, certain rights to property that are called dower rights. The Act applies to certain real estate where only one spouse owns the property, but it is lived in by both spouses as the family home at some time during the marriage. This family home may not be sold, given away or rented for a period of more than three years without the consent of both spouses, while both are living. If your spouse owns the family home (i.e., the land title is in his name) and dies, you have the right to live in it for the rest of your life, but you may not sell it. If your spouse left the house to you in a will, it would also be yours. If not, you would just have the dower right. If more than one home was owned by your deceased spouse and was lived in by both of you during the marriage, you would have to choose which house you wanted to claim the dower right. Dower rights pass to the surviving spouse whether or not they were included in the will of the deceased spouse. Dower rights are lost upon divorce. As well, dower rights can be lost if a court allows your spouse to sell or give away the family home without your consent. A judge would make such an order only when she considered it fair and reasonable in the particular circumstances. If your dower interests are transferred by your spouse to a third party without a court order or your consent, you can sue him for damages. Dower rights also extend to personal property owned by your deceased spouse.

SPOUSAL AND CHILD SUPPORT

Maintenance Enforcement Act During marriage, each spouse has financial obligations to the other and to any children of the marriage. The obligations continue even if you separate. Too often in the past those spouses whom the courts ordered to provide support failed to do so. It was for this reason that in June 1985 the Alberta government introduced the Maintenance Enforcement Act establishing a government agency to enforce support orders.

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All support orders issued in Alberta are automatically filed with the Director of Maintenance Enforcement, unless the spouse who is to receive support opts out. Payor spouses are required to make payments to the Director who then forwards the payment to the receiving spouse. Applying For Support Either spouse (and this includes common law relationships and “same sex” relationships by way of the Adult Interdependent Relationships Act) has the right to apply for support. You can apply for yourself alone or for the children of the marriage or partnership living with you or for both yourself and the children. Generally, the court orders spousal or child support after a separation, an application for divorce, a judicial separation or annulment. There are, however, many other circumstances under which a person may seek support payments. You may receive support if your spouse has agreed to pay it in a separation agreement. If your spouse has deserted you, you can apply for support for you and the children. You have been deserted if your spouse walks out on you or forces you to leave by refusing to provide you or your dependent children with food, clothing or shelter or treats you so badly that you must leave. If you require support, there are several routes to choose from, depending on your circumstances. You and your spouse can agree informally on support without the aid of lawyers or you can attend upon a mediator to assist you in your negotiations, you can draw up a more formal separation agreement with the help of a lawyer, specifying the support one spouse will pay to the other or, if necessary, support can be ordered by the court. A single mother may apply for an order called an "affiliation order." This order will require the male whom the mother and the court declare to be the father of the child (called the putative father) to pay any reasonable expenses for the care of the mother during some of the pregnancy and for the support and education of the child until the child is 18 years of age. Calculation Of Spousal Support When deciding whether or not spousal support should be awarded and how much that support should be, the judge considers the means, needs and other circumstances such as the circumstances of the marriage or relationship (length of time the parties cohabited, functions performed by each party during cohabitation and children and any order, agreement or arrangement relating to the support of either party, the financial status of each of the parties and the amount being paid or received for child support. Recently, the federal government published spousal support guidelines, that, unlike child support guidelines, are not binding on the courts and are used as a guide only. The intention of these guidelines is to provide consistency and, hopefully, eliminate much of the litigation that surrounds the area of spousal support, thereby reducing the cost of separating. The Divorce Act applies to support for married parties, the Domestic Relations Act includes support for common law relationships, the Parentage and Maintenance Act allows short term support for a mother who is neither married to nor resided in a common-law relationship with the father and the Adult Interdependent Relationship Act allows for support for those in adult interdependent relationships, which can include parties of the same sex. Support payments can be paid in lump sum or in weekly, monthly or yearly payments. Periodic payments ordered by the court can be deducted from the taxable income of the paying partner and have to be claimed as income by the person who receives them. Lump sum payments are generally not deductible. Federal Child Support Guidelines On May l, l997, the federal government amended the Divorce Act and introduced the Federal Child Support Guidelines. Corresponding amendments were made to the Income Tax Act. All applications for child support, or to vary child support and all written agreements for child support made on or after May l, l997 fall under the Federal Child Support Guidelines. Payments are tax free to the recipient and are not tax deductible by the payor. Agreements or Court Orders made before May l, l997 are generally not affected by the new income tax rules. The Guidelines allow for provinces to enact their own Regulations and the Alberta Court of Appeal in the Cavanaugh case stated that in most cases, the Guidelines will provide the most appropriate determinant of support. Support determined under the Guidelines has two components: a table amount and special expenses. The intention of the tables is to provide “equal justice”. The Guidelines lay out what portion of a parent’s net income they contribute toward the support of children and the number of children is used as a factor. This amount varies from province to province depending on the tax rate of each province.

Women and the Law 6th Edition, 2005 86


In order to determine the amount of maintenance or “table amount” to be paid, the income of both parties has to be established after deductions for allowable adjustments and other considerations such as unrealized income, imputed income and nonrecurring losses. The next step is to determine the special or extraordinary expenses that take into consideration specific needs of the child. There are six areas of expenses, which allow for an increase in child support. These expenses must be reasonable and necessary in light of the needs of the child, the means of the parents, and the parties’ spending pattern prior to separation: child care expenses incurred to enable the caregiving parent to work or train for employment, the child’s share of medical and dental insurance premiums, the Medical and Health related expenses for a child that exceed insurance reimbursement by at least $l00 annually., Extraordinary Educational expenses, Expenses for Post secondary education and Extraordinary Expenses for Extracurricular activities. Once these eligible expenses are determined, eligibility for tax deductions, subsidies, benefits or credits available to one or both spouses must be considered and then how these expenses are to be divided between the spouses. Calculation of these expenses can be a complicated exercise and there are many other factors that may be included in the calculation such as adult children, shared custody, hardship and exceptions. The Child Support Guideline Centre will help you free of charge and are located in the Court House Annex at 603 7th Avenue S.W., Calgary. Non-Payment Of Support If your spouse is unwilling to pay support, you can apply to the Maintenance Enforcement Program to have your court order enforced. The Director can demand a statement of finances from any individual who is behind in making support payments. She may also garnishee a portion of the debtor spouse's income or bank account and seize his property, and she will attempt to collect arrears as far back as ten years. If you do not know where your former spouse is living, the Director has authority to examine motor vehicle registrations and Alberta Health Care records in order to obtain addresses. If your former spouse has moved to another province or country, the Alberta Maintenance Enforcement Program has reciprocal agreements with most of the provinces and many countries throughout the world. It is important to note that you may be without support for a very long time if your spouse is in arrears of payments and Maintenance Enforcement is pursuing your arrears. Receiving Social Assistance will not affect your eligibility to receive support, but upon receipt of support payments, the amount of your Social Assistance may be decreased. Family Orders And Agreements Enforcement Assistance Act The Family Orders and Agreements Enforcement Assistance Act allows the courts to authorize release of information from designated data banks to a court, to the police or to a provincial enforcement service, if there has been a breach of support provisions, a custody provision, or an access right. In order for this Act to come into effect, a province must enter into an agreement with the federal government. Alberta has done so. Every agreement establishes safeguards to protect the confidentiality of information released under this Act, and designated provincial data banks must be searched prior to requesting a search under the federal data banks. When there are reasonable grounds to believe that either the person in breach of the custody/access order or agreement, or the children, have left the province, provincial data banks do not have to be searched before authorization can be given to search federal data banks. A provincial enforcement service may also be designated in these agreements. Where this occurs, upon court authorization, these services may apply directly to the Minister of Justice for the release of information and they will receive the information that is released. Every province that has its own comprehensive pension plan may also enter into an agreement with the Minister of Health and Welfare for the release of information in respect of contributors and beneficiaries under such plans. These agreements, when entered into, will complement the release of information from data banks of the Canadian Pension Plan.

CHANGE OF NAME

It is your common law right to call yourself by any name you chose, as long as it is not for fraudulent purposes. You may do this by simply using the name you chose. There is often resistance to this by some institutions and consequently it is best to Women and the Law 6th Edition, 2005 87


start by changing your name on your driver’s licence. Passport Canada acknowledges this right by allowing any person who is known by a name that is not their birth name to provide affidavits from people in the community who have known you by the name you have chosen for a certain length of time, in order to provide you with a passport in that name. In Alberta, the Change of Name Act and Vital Statistics Act place certain restrictions on the changing of names. Generally, any person who is over the age of 18 years and is a resident of Alberta may apply to change her name or the name of her child. A child's consent is required if she is 12 years of age or older. The consent of the father is required if the child is under the age of l8. Using Your Husband's Surname It is not legally required that you use your husband's surname upon marriage. Many women prefer to keep the name they were given at birth. A woman who wishes to keep her birth name may do so by continuing to use her own surname on all legal forms and documents. Changing Back To Your Birth Name There are two ways to change back to your birth name. One way is to start using your birth name and insist that others use it as well. A good place to start is with a change of your name on your driver’s licence. Then send a signed document to all professionals and institutions with whom you do business stating that you are reverting to your birth name. Some businesses, such as the telephone company, may charge you for changing the account to another name even though you are still the same account holder. A second way to change your name is to make an application to the Division of Vital Statistics under the Change of Name Act. Children And Name Change In Alberta, children born within a legal marriage may be given the birth surname of the mother, the surname of the father, or a hyphenated combination of the two names. If the parents are not married, the consent of the father is required before a child born of that relationship can be given his surname. If a married couple apply for a change in the family surname and the new name is approved, that surname will automatically apply to the children of the marriage unless the children are 12 years of age or older and do not consent to the change. A divorced woman must obtain the consent of her former husband if she wishes to change the surname of their children, unless the court orders otherwise. If she remarries and the children wish to take her present husband's name, his consent and the consent of her former husband are required. A widow who applies for a change of surname will automatically change the surname of each of the children unless the child is over the age of 12 years and objects. Procedure For Changing Your Name Visit or write the Division of Vital Statistics office in either Edmonton or Calgary to obtain the necessary forms. The staff will help you fill out the forms and tell you which consent forms you will need for your particular situation. You will need to support all applications with birth certificates and any consent, divorce decrees, or custody orders that the Director of Vital Statistics requires. The application is sent to Edmonton to be processed and a Certificate of Change of Name is sent to you. You must then publish a notice of the name change in the Alberta Gazette, a publication that contains changes in the provincial laws and other legal notices. Ask the staff at the Division of Vital Statistics for guidance here. It is your responsibility to have your identification documents, such as a driver's licence, Social Insurance Number, passport, etc., changed to your new name.

Women and the Law 6th Edition, 2005 88


W

omen and

C

hildren

Women and the Law 6th Edition, 2005

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PARENTAL RIGHTS AND OBLIGATIONS

A person who is under 18 years of age is considered to be a minor unless that person is legally married. Legally, a minor or young person is unable to manage her affairs. The law provides that an adult must be responsible both for the child personally and for the child's property. Parental Support For The Necessaries Of Life Section 197 of the Criminal Code of Canada requires parents, foster parents, guardians and heads of families to be responsible for providing the necessaries of life (food, clothing, shelter, medical aid) to a child under the age of 16 or a child older than 16 who remains under their charge and who is unable to provide herself with the necessaries of life. Discipline Parents are responsible for the discipline of their children. Section 43 of the Criminal Code permits parents, teachers or persons who are in the position of a parent, to use reasonable force to correct the behaviour of a pupil or child under their care. The force used must be reasonable in the circumstances. If excessive force is used, the person responsible may be charged with an offence under the Criminal Code. Morals Under Section 172 of the Criminal Code, it is an offence to participate in adultery, sexual immorality, habitual drinking or other morally offensive acts in the home of a child if such acts endanger the morals of the child or make the home an unfit place for the child. "Child" means anyone who is or appears to be under the age of 18. Although this section is very broad, its use is controlled by the fact that no court action can be taken without the consent of the Attorney General, a child welfare officer, or a youth court. A violation of Section 172 is an indictable offence punishable by up to two years in prison. Other Responsibilities The Child, Youth and Family Enhancement Act is similar in effect to the above discussed Criminal Code provisions. The Act sets out the reasons for which a child may be apprehended or taken from a parent's custody by a child welfare worker. The reasons for apprehension are broadly defined and the decision to apprehend is at the discretion of the worker. The Act requires parents to care and provide adequately for their children and to keep them under fairly close supervision. Any failure to fulfill the duties defined by the Act could result in an apprehension of the child involved, but usually a child is not removed from the parent's custody unless the child's life, health or well being is endangered or the child commits an offence.

AMICUS CURIAE-THE CHILD'S LAWYER

In custody disputes, parents are sometimes so personally involved in the proceedings that they are unable to objectively consider their child's best interests. In these circumstances the parents may choose, or the court may order, that the child be independently represented by another lawyer. The "child's lawyer" is called an amicus curiae (Latin for "friend of the court"). This procedure has been used in Alberta for over 35 years. Who Is The Amicus Curiae And What Does She Do? The amicus is a lawyer in private practice hired especially for the purpose of providing independent legal representation for a child and marshalling expert evidence to assist the Court in arriving at its ultimate decision. Once the amicus is selected, she will hire psychiatrists, psychologists or social workers to investigate and prepare a report on the child's situation. These reports take time to prepare, often causing a delay of at least six to eight months in the legal proceedings. Once the amicus has reviewed the report, based upon the best interests of the child, she will recommend which parent should have custody and how access should be arranged. Recommendations of the amicus are not binding on the court (that is, the court need not follow them), but in general, the court relies heavily on the objective observations and recommendations of the amicus. Women and the Law 6th Edition, 2005 90


MEDIATION AND COURT SERVICE PROGRAM

Private lawyers who can act as an amicus are still available from the practicing family law bar but the government amicus program has been replaced by the Custody Mediation Program This program provides free mediation services to parties presently before the Court of Queen’s Bench and Provincial Court, Family Division with a custody or access dispute. Should the mediation not prove successful, i.e. the parties are unable to resolve the issue of custody or access, the parties in Family Court can be recommended for custody, access assessment. A list of names of qualified professionals is available to the parties and from this list they chose a name (psychologist or social worker) that they agree could prepare a report for court purposes. The cost of the assessment is divided equally between the parties and one or both parties may qualify for a subsidy.

CUSTODY

The parent with sole, court ordered custody of a child may exercise full parental rights in relation to that child, including responsibility for the day-to-day care, control and upbringing of the child and the right to make final and important decisions concerning the child. Legally married parents have equal right to the custody and guardianship of their child until the court orders otherwise. On separation or divorce, joint custody of the child is usually given by the court to the parents, with daily care and control given to one parent and access (visitation rights) given to the other parent. In deciding which parent should have daily care and control, the court will look at what is in the best interests of the child. The Divorce Act allows the court to make an order regarding custody or access in favour of either or both spouses or any other suitable person. This means that aunts, uncles, grandpa rents or other interested parties may apply for custody and access to the child. Joint custody means that as far as the children are concerned, divorced or separated parents each have the same (and equal) rights for input into the major decisions that affect the children, even though one parent may actually have the children living with him or her, making the daily decisions and the other may just have the children for visits. Custody Issues Upon Separation Or Divorce Upon separation, you and your spouse should determine what the custody arrangement will be, and include that decision in any separation agreement you have drawn up. If you and your spouse cannot agree, you can attend mediation or apply to the court to make this decision for you. Custody Orders 1.

Interim Order

When you apply for a divorce or judicial separation, you should ask for interim custody of the children until the final hearing. Interim orders usually give custody to the parent with whom the child is currently residing in order to avoid unnecessary disruption of the child's life. 2.

Permanent Order

In deciding on a final custody order, the court will conduct a detailed examination of the fitness of each parent and the needs of Women and the Law 6th Edition, 2005 91


the child and will make its decision based on what is in the best interests of the child. A custody hearing forces parents to endure a close inspection of their character, conduct and resources, and can be a painful, expensive and lengthy battle. Whenever possible, the parents should try to settle custody outside the court. In awarding custody, the child’s moral, physical, spiritual, psychological, developmental and material needs are taken into consideration. Older children's wishes are also considered, with the court taking into account the child's age, maturity and the reasons the child wants to live with a particular parent. Every effort is made to meet the child's needs, to maintain stability in the child's life and to preserve the ties of affection between the child and both parents. Once a court order for custody is made you and your spouse must abide by the order. If you breach the order by denying access to the other spouse (e.g., because he has not paid maintenance to you), you may be found in contempt of court. If you are found to be in contempt, you can be fined or imprisoned. In addition, the court can order a change of custody to the other parent under the provisions of the Divorce Act. An Alberta order for custody can be registered in other provinces in Canada as well as other countries. It is a criminal offence for a parent or guardian to take a child, under 14 years of age, with the intention of depriving the custodial parent of lawful possession of the child. (See the section on Child Abduction for further information.) Custody matters are complicated and you should consult a lawyer regarding your rights and responsibilities. Factors Considered In Awarding Custody In evaluating which parent should be awarded custody of the child, the court takes into consideration the following factors: 1.

Circumstances of Each Parent, Age of The Parent, Age and Sex of The Child,

The belief that an infant or female child should be with the mother and a boy with the father now has little or no force in custody disputes, although these factors are given some weight if the children are in their teens. If the persons who are applying for custody are old or sick, it may go against their application if the child is very young and needs the support of physically and mentally healthy adults. 2.

Financial Status

It will not hurt your claim for custody if the other parent has more money than you. Child and spousal support assist in equalizing the financial circumstances of the parents. The court may favour the parent who is able to care for the child at home instead of placing the child in daycare. 3.

Future Plans of The Parties

The court will also consider which parent is better able to exercise visiting rights or who will try to co-operate with the other parent. In addition, the court may order that the child cannot be removed from a specific city or area by the custodial parent if such removal would make it difficult for the other parent to exercise access. For example, a mother may obtain custody so long as she does not move outside of Calgary. If the mother wishes to move away with the child to find work, she will have to get a court order to do so. 4.

Wishes Of the Child

The wishes of the child will be considered, but the court will only make an order which is in the child's best interests. It does not matter if the parents agree with the order or like it; they have a legal duty to obey the order. 5.

Conduct Of The Parties

A common law or adulterous or homosexual relationship will not prevent a parent from having custody or access as long as that parent is fit to care for the child. Lack of interest in the child, lack of the ability to discipline, criminal behaviour, or failure to provide for the child can result in a denial of custody. Constant refusal to obey a court order for custody or access could result in a review of the order by the court and penalties for the person who violates the order, or even a change of custody from the parent who is not complying with the court order. 6.

Other Factors

The court will look at the lifestyle of each parent (e.g., their friends and acquaintances, how they spend their time, their Women and the Law 6th Edition, 2005 92


interests and goals, the way they deal with problems, etc.), to see the influences to which the child will be exposed. The court may not want to separate children if there is more than one child, or to give custody to a parent if there are conflicts between their child and the children of a common-law parent or step-parent. Mediation Relying on the judicial process to determine who gets custody may result in the imposition of a decision unsatisfactory to both you and your spouse. Another way of resolving the issue of custody may lie in the process of mediation. Mediation relies on the efforts of a neutral third person, often a psychologist or family law lawyer, who attempts to resolve the dispute by creating an environment of empathy and openness in order to assist both you and your spouse to understand each other's position, and to encourage an agreement between you. Since you and your spouse are generally in the best position to know and accommodate your children's needs, you, rather than a judge, are the best persons to make decisions about them. Parents, handicapped by the emotional distress resulting from marital breakdown, sometimes need assistance in regaining the ability to make these decisions. Mediation provides this assistance and avoids the need for judicial intervention. In Calgary, as of February 1, 1989, the Calgary Custody Mediation Program is available to provide mediation services respecting custody and/or access disputes in divorce proceedings, guardianship proceeding and applications to vary prior custody, access or guardianship orders. For further details, call the Mediation and Court Services at 297-6981. For additional information about mediation, call the Alberta Family Mediation Society at (403). Changing the Custody Order Upon application to the court, a custody order can be changed if there has been a change of circumstances, and if it would be in the best interests of the child. The Divorce Act allows a variation proceeding in a province where an ex-spouse applying for the variation is now living, provided that the ex-spouse has resided there for at least one year. Children Born Out of Wedlock The mother of a child born out of wedlock has sole guardianship and custody of the child, unless the father and mother cohabited for one year prior to the birth of the child. Then the father is also deemed to be a guardian. The natural father may also acquire rights in relation to the child (e.g., those of custody, access or joint guardianship), if he acknowledges paternity, remains involved in the child's life, or is declared by the court to be the father of the child. A father's chances to successfully claim rights as regards the child are easier if mother, father and child have lived together as a family and if the father's name is included on the birth certificate.

ACCESS

Access (or visitation rights) is the right of a child to have contact with his or her non-custodial parent. The notion that parents have an absolute right of access to their child has existed until recently. It is now formally accepted that access is awarded solely on the basis of the welfare of the child and without regard to so-called parental rights. Nonetheless, it is a fact that access is awarded to a non-custodial parent as a matter of course and that it is rarely awarded to anyone else. Usually, it is to the benefit of a child that she maintain contact with both parents; the degree of contact between the child and the non-custodial parent varying in accordance with the circumstances. If continued association with the non-custodial parent will cause harm to the child physically, mentally or morally, then the court will consider denying or limiting access to the noncustodial parent. Access Rights Access or visiting rights may be set out in specific detail; for example, the date and time that you pick up and return the child. Visiting rights may also be non-specific, thus allowing you and your spouse to negotiate freely with each other. This is known as liberal or reasonable access. Visiting rights may also be conditional, which means that one or both of you may be required to obey certain rules when you have access. For example, a parent may be ordered to abstain from alcohol when he or she visits the children. It is always better for you and your spouse to work out the times and conditions of access (and to change them when necessary), but the court will settle the arrangements if you cannot agree. Access is enforceable. A custodial parent who refuses Women and the Law 6th Edition, 2005 93


to obey the terms of an access order may be held in contempt by the court, placed on probation or fined, or even lose custody. Either you or your spouse may go to court and request a change in the access order, but you will require evidence that the change is in the best interest of the child. In the event of access problems, both the custodial and non-custodial parent should keep track of events concerning access and contact with the other parent in a diary. Each entry in the diary should be made as soon as possible after any difficult situation occurs and should include the names, addresses and telephone numbers of any witnesses who were present.

GUARDIANSHIP

A person who is under 18 years of age is considered to be a minor. Legally, a minor is unable to manage her own affairs, so the law provides that an adult must be responsible, both for the minor personally and for the minor's property. The person in authority who looks after the minor personally is called a "guardian" and the person who looks after the minor’s estate is called a trustee. Who Is A Guardian? In Alberta, if a child's parents are married to one another and living together, they are each guardians of both the child's person and estate. If they separate, both parents remain joint guardians of the child's person and often of the estate. If the child's parents were never married to one another, the mother is the legal guardian of the child unless the father has co-habited with the mother for one year prior to the birth of the child or he applies for a court order naming him joint guardian under the Domestic Relations Act or the Child, Youth and Family Enhancement Act. Even when there is a court order or an agreement which orders the unmarried father to support the child, he is not a guardian unless the order or agreement so indicates. Guardianship may also occur on the death of a parent or guardian if a parent or guardian appoints one or more persons in their will to act as guardian of his or her children. In some cases, where the parent or guardian of the child refuses or is unable to properly care for the child, the Children's Guardian may be appointed either by court order or by agreement with the parent. The Children's Guardian is an official of Alberta Family and Social Services who is responsible for all matters concerning the welfare of children. (The Public Guardian is the government official who is responsible for all non-financial matters concerning some children and dependent adults). You and your spouse may, in your wills, appoint more than one person to be guardian and trustee of your child. For example, one guardian may look after the child's person and be responsible for the day-to-day decisions regarding the child's upbringing. Another person called a trustee might be appointed to be responsible for the child's estate, to manage any money or property you leave to your child. Obtaining permission of the person(s) you want to appoint as guardian and trustee is crucial as a guardian or trustee need not accept the obligation and can apply to the court to be relieved of his or her duties. In choosing a guardian, you should consider such factors as the age of the child, the age of the guardian, the guardian's lifestyle and her attitude towards education and religion. Appointing a guardian is a complex process and you should seek legal advice before doing so.

THE ALBERTA FAMILY LAW ACT

The Alberta Government passed the Family Law Act in December, 2003. It is not yet law and is expected to be proclaimed in the latter part of 2005. This Act consolidates provincial family legislation such as the Domestic Relations Act, Maintenance Orders Act, Parentage and Maintenance Act, as well as parts of the Provincial Court Act. The intention of the Act is to make family law easier for Albertans. In addition to combining separate pieces of family law legislation, the Act also extends current family law legislation in a number of areas. Some of these extended areas are Women and the Law 6th Edition, 2005 94


grandparent’s rights, enforcement of contact orders, surrogacy, assisted conception, child support, spousal support, financial disclosure and exclusive possession of the matrimonial home. If you have any concerns about your rights in any of these areas, please seek legal guidance to confirm whether the legislation has been passed and its effect upon your situation.

ADOPTION

A parent or guardian who gives up their child for adoption is no longer entitled to custody or control of the child, has no right to interfere with the child, and gives up all parental rights and duties in relation to the child. An adopted child becomes a child of the adopting parent. All adoptions are governed by Part 6 of the Child, Youth and Family Enhancement Act. This Act sets out the steps to be followed and requirements that must be met.

General Requirements 1.

Age Restrictions

Any child who is over ten days and under 18 years of age may be adopted. When a child is 12 years old or over, her consent to the adoption is required. If the child does not consent, a court order will have to be obtained to dispense with the child's consent. 2.

Who Can Adopt

Any adult person over 18 years of age, whether single or married can adopt a child. Married persons must apply together for an adoption. A husband and wife can make a joint application if either is over 18 years of age or if the child they wish to adopt is the child of either of them. 3.

Types Of Adoption

Children who have been orphaned, taken from incompetent parents, or given up freely by parents, who are unable or unwilling to keep them, may become permanent wards of the Crown. These children are under guardianship of Alberta Family and Social Services which try to find adoptive homes for them. If a child was born to you out of wedlock and you marry, your spouse may adopt that child. Also, if you have children born of a previous marriage, your new spouse may apply to adopt those children and become a legal parent with you. You may also adopt a child who has been placed in your care by the child's parent or guardian. The last two types of adoption are referred to as non-ward or private adoptions. Private Adoption Private adoptions have become popular in the past few years. There are several situations where private adoption might take place: a woman who has a child by a previous marriage or relationship and her new spouse want to adopt that child; or a mother may decide to give up her child for adoption but wants to have control over the type of home to which the child goes. These days, fewer babies are being turned over to Alberta Family and Social Services to be placed for adoption, so persons who wish to adopt a child may try to do so privately to avoid a long wait. There are some disadvantages in choosing the private adoption route. The prospective adoptive parent must find a woman who is willing to give up her baby for adoption or go through a licensed agency "pool" where information on the adoptive parent is made available to women giving up their children for adoption. The birth mother then selects the family she wishes for her child from the "pool." There is no guarantee that the mother will not change her mind and refuse to give up the child after the birth. Private adoption is also more expensive. The adoptive parents must pay a fee to the licensed adoption agency.

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As of September 1, 1989, private adoptions (other than family and step-parent adoptions) must go through a licensed agency. For a fee to the prospective parents, these agencies offer counselling, match prospective adoptive parents with women willing to give up their babies, and prepare, file and serve all legal documents. Steps in a Private Adoption (1)

Find a baby to adopt. You may be able to find a pregnant woman who wants to give up her baby through chance or a private adoption agency.

(2)

The prospective adoptive parents should discuss what they would do if the child is born with a serious disability or disease. It is important that the adoptive parents receive a detailed family history from the mother. The history will make them aware of any potential medical or social problems that the child may develop.

(3)

Both the natural mother and the adoptive parents should decide if they want to have any contact with each other during the pregnancy, at the birth, or after the birth.

(4)

Immediately after the birth, the adoptive parent should contact a licensed agency if this hasn't already been done. In a private adoption situation, a guardianship order is obtained after the child's birth as protection for the prospective parents until the adoption order is obtained. It is important for the prospective adoptive parents to get the guardianship order because it gives them the authority to make decisions about medical treatment for the child before the adoption order is made. The legal guardian is also a joint guardian to the child until the adoption order is granted.

(5)

The natural mother must inform Alberta Family and Social Services within 30 days of surrendering custody that she has placed her child with the adoptive parents. Social Services will provide the natural mother with forms to fill out once they are made aware of the prospective adoption.

(6)

The adoptive parents must also advise Alberta Family and Social Services within 30 days that the child has been placed with them for adoption. Once again, Social Services will require that application forms be filled out with the Department.

(7)

The licensed agency will prepare a petition (or court application) for adoption. An investigation will be conducted and a report prepared, which is presented to the court within six months from the date of the petition. The petition must be accompanied by a sworn document that declares that the petitioners are fit parents. The prospective parents or a lawyer acting on their behalf will present the petition and the report to a judge of the Court of Queen's Bench in the district where the child, the child's guardian, or the petitioners reside.

(8)

If the judge is satisfied that the petitioners are suitable parents and that it is in THE CHILD’S best interest to be adopted, the judge may grant the adoption order. It is no longer necessary for the child to be placed with the adopting parent for a trial period of six months before an adoption order can be made. An order for adoption may be made at any time after the child is ten days old.

(9)

In cases where the adoptive parents (or Children's Guardian) first obtained a permanent guardianship order, the application for adoption cannot be made until the time to appeal the permanent guardianship order has expired.

(10)

No action to set aside an adoption order can be taken after one year from the date of the adoption order, except where the adoption was obtained by fraud and then only if it is in the child's best interests to set the order aside.

(11)

The identity of the child is usually carefully guarded. Only the child's given name is used in the petition. The child's surname and legitimacy status are not mentioned. When the adoption order is made, adoption records are placed in a sealed package or sealed place and will be disclosed only with the consent of the Minister of Social Services or on order of the court.

(12)

It is an offence, punishable by a fine of not more than $10,000 or, if a fine is not paid, imprisonment of not more than six months, for anyone to give or receive money to obtain a child for adoption. The only Women and the Law 6th Edition, 2005 96


exceptions are for fees paid to licensed adoption agencies and for the preparation of the home study report, for lawyers' fees and for doctors' fees for examination, treatment or immunization of the child. Written permission of the Minister of Social Services is required before anyone can be prosecuted for this offence. (13)

The Director maintains records through which birth parents and adopted children may obtain information about each other. When an adopted child reaches the age of 18, the Director may reveal that information to interested parties, but only if permission to release the information has been given by the other person. In all adoptions, the consent of the child's guardian is necessary before an adoption order may he made. Unless a judge dispenses with the guardian's consent, the consent of the natural mother is reserved. The consent of the natural father, or an order dispensing with his consent, is only required if he was the legal guardian or if he cohabited with the mother for 12 months prior to the birth of the child.

Non-Private Adoption Those who want to adopt a child through Alberta Family and Social Services should apply to their local AFSS Adoption Unit. Children become available for adoption through the Department in three ways (1) Where their parents surrender them voluntarily at birth or later; (2) Where they have been taken away from their parents by the Department due to child abuse or neglect; (3) Where they have been orphaned and no person, such as a relative of the parents, has offered themselves as a guardian. Steps in a Non-Private Adoption (1)

The prospective parents contact the Adoption Unit in Calgary or Edmonton. The intake worker provides general information.

(2)

If requested, an application kit is mailed out.

(3)

When the completed application is returned to the Adoption Unit, the prospective parents are asked to attend at the unit for an interview. At that time, the process and procedures for adoption are explained and the applicant's situation is discussed.

(4)

If the applicants are accepted, their names are registered at the Central Office in Edmonton on the waiting list for the required home study.

(5)

A newsletter is sent out every six months to those on the waiting list to provide an update on waiting times as well as advice on any policy changes.

(6)

Applicants are contacted for the home study approximately six months before a child is available for placement with them.

(7)

Upon completion of the home study, the social worker makes a recommendation that is reviewed by a supervisor and the District Office Manager who finalizes the decision. This process takes approximately one month.

(8)

Upon approval, most applicants are referred to the Calgary Adoption Resource Foundation that offers courses on placement, infant care, and preparation for parenthood and adoption issues.

(9)

All matching of children with prospective parents is done in the Central Office of Social Services in Edmonton. Background information regarding the child and birth parents is shared and, if appropriate, the prospective parents are asked to travel to the District Office in or near the place where the child is born. In the case of an older child, a series of visits are arranged prior to the child being permanently moved.

(10)

The application then proceeds very much as set out in steps 7 through 13 in the section on Private Adoption. There is no cost to the prospective parent. Women and the Law 6th Edition, 2005 97


CHILD ABDUCTION

Criminal Liability Sections 281 through 286 of the Criminal Code of Canada deal with the offence of kidnapping one's own child. It is an offence for a parent to take or keep a child under 14 years of age contrary to a custody order that gives custody to the other parent. It is also an offence to take a child under 14 years of age away from the parent with whom the child lives even if no custody order exists. If the Crown Prosecutor proceeds by way of summary conviction, a parent who is guilty of one of the above offences is liable to a maximum penalty of $500 or six months imprisonment or both. If the Crown proceeds by way of indictment, a parent who is guilty of one of the above offences will be liable to a maximum penalty of ten years imprisonment. A parent is also guilty of an offence if she fails to return the child following the exercise of visiting rights. These laws are intended to protect the child's "right to security, stability and continuity in her life." It is a defence to the charge if you have taken your child in order to protect the child from imminent danger, but you must prove that you had reason to believe that the child was in danger. A child under 14 years of age cannot consent to being abducted. If your spouse kidnaps your child, you should call the police who have the power to lay charges, file a missing person's report and/or issue a warrant for the arrest of the abducting parent. If your child has been taken out of the country, the situation is much more complex and you will probably require the services of a lawyer. If your spouse kidnaps your child but you do not have an order for custody, the permission of the Attorney General's Department is necessary before a charge can be laid. This may delay the search for your spouse and the missing child so it is important that you obtain formal custody of your children when you and your spouse separate. You may immediately apply to the court for an ex-parte (without notice to the other party) custody order even though the child may no longer be within the jurisdiction of the court if the child has had a “substantial connection� to the jurisdiction of the court. Formal custody can be obtained through a court order or written agreement with your spouse. A verbal custody agreement with your spouse may be very difficult to prove if a dispute arises, so it is better if the custody arrangement is in writing. If you are unmarried but live with the child's father, the two of you share custody while you live together. However, unless there is an agreement or court order to the contrary, or the father lived with the mother for one year before the birth of the child, the unmarried mother is the sole guardian of the child upon separation. (See section on Custody, Access and Guardianship). Hague Convention on the Civil Aspects of International Child Abduction An international treaty called the Hague Convention on the Civil Aspects of International Child Abduction was established to set out a system of administrative and legal procedures to discourage parental abductions and to try to ensure the prompt return of children removed by one parent from their home country. Canada was one of the first countries to sign the Convention and Alberta has since embodied the Convention in the International Child Abduction Act, which was, proclaimed in February 1987. Under the International Child Abduction Act, the province has established a "Central Authority" whose duties include locating internationally abducted children, arranging the voluntary return of children, providing legal representation, helping to allow access and expediting the child's return travel arrangements. The Central Authority operates through law enforcement agencies, child protection agencies, locating services and International Social Services (1SS). Other Services Available Other agencies are also available to assist a parent whose child has been abducted. ISS is an international, non-profit, nongovernmental organization. It works as a liaison between various social service agencies and a world-wide network of branch offices and correspondents co-ordinated through a Secretariat in Geneva. ISS tries to clarify the legal issues surrounding the disputed child, to relieve the emotional anxiety of the deprived parent and to maintain communication between the parties. ISS Women and the Law 6th Edition, 2005 98


Canada accepts parent referrals from both public and private social service agencies, Child Find, women's emergency shelters and lawyers. ISS may be contacted in Ottawa at (613) 236-6161. Child Find, an international agency with offices throughout Canada and the United States, acts as a liaison between the police, lawyers, parents and government agencies such as External Affairs and Social Services. Child Find Alberta has a private investigator on contract whose services can be provided without charge to parents who cannot afford to pay. If you are interested in seeking their services or providing information with respect to a missing child, you can contact Child Find Alberta in Calgary at 270-3463.

CHILD ABUSE

In Alberta, the Child, Youth and Family Enhancement Act gives Alberta Child and Family Services the power to take measures to protect children from abuse and neglect. The Act recognizes the importance of the family in raising and caring for children. A child will be left in the family and community setting where that can be done without risk to the child. When it is necessary for the government to step in to protect a child, this is done in such a way that the focus of the intervention is the best interests of the child and the preservation of the family unit. Children are defined as persons under 18 years of age. In extreme cases, child welfare workers have the authority to take a child in need of intervention out of the parents' home and hold that child in custody until a court decides what shall be done with her. In most cases, a court order allowing the apprehension of a child must be obtained in advance. Definitions of "Child in Need of Intervention" The Child, Youth and Family Enhancement Act states a child is in need of intervention if there are reasonable and probable grounds to believe that the survival, security or development of the child is endangered because of any of the following: . a child who has been abandoned or lost; . a child whose guardian is dead and who has no other guardian; . a child whose guardian is unable or unwilling to provide the child with the necessities of life, including essential medical treatment; . a child who faces a real risk that she will be physically and/or sexually abused; . a child who has been emotionally injured by the guardian or whose guardian is unable or unwilling to protect the child from physical injury, sexual abuse, emotional injury or from cruel and unusual treatment or punishment, or . a child who is totally unmanageable and whose guardian cannot provide the child with adequate care and supervision. The Act gives definitions of neglect, emotional injury, physical injury and sexual abuse. Any person found mistreating or neglecting a child may be imprisoned and/or fined, although it is often very difficult to prove child abuse where the parents are the responsible parties. It is an offence not to report the mistreatment of children; therefore, you are under a legal duty to report any suspicion of child abuse to the Child Abuse Hotline. The telephone numbers for the Child Abuse Hotline are found in the back of this booklet. Remember, any information you give will be treated as confidential if that is necessary to protect you. However, the Minister of Child and Family Services can consent to your name being released. Once a report is made, a child welfare worker will investigate the situation to determine whether the complaint of abuse is well-founded. If the child is in need of protection, the director under the Child, Youth and Family Enhancement Act may make an agreement with the child's parent or guardian to place the child under the guardianship of the director. The director is the person appointed by the Minister of Alberta Child and Family Services to handle these matters. If the director and the child's parent or guardian cannot reach an agreement to place the child under the guardianship of the director, a court hearing will be held to assess the child's situation. If the child welfare staff thinks it is an emergency, the child may be removed from the parent's home until the hearing. The court will have to decide whether the child has been abused or neglected and whether the child should be taken from the parent's home temporarily or permanently.

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Hearings are as informal as possible and the parents or guardians may have the right to explain their side of the story to the court. However, the court may exclude any person from the hearing, even a parent or guardian, if it concludes the parent's or guardian's presence would be injurious or prejudicial to the child. The parents or guardians are entitled to be represented by a lawyer at the hearing. A lawyer may also be appointed to represent the child's interest. The decisions of this court may be appealed to a higher court. Supervision Orders, Temporary and Permanent Guardianship Orders After hearing all the evidence, if it is proved that the child may be inadequately protected, the court may order the mandatory supervision of the child and her family in their home. If the court concludes the child cannot be adequately protected if she remains with her guardian, but it can be anticipated the child may be returned to her guardian within a reasonable time, it may make a temporary guardianship order whereby the director is temporarily given custody of the child. If the court determines the child is unlikely to be returned to her guardian within a reasonable period of time, it may make a permanent guardianship order. If a child is placed under the temporary guardianship of the director, the guardianship order must be reviewed at the expiry of the term of the order. It may be reviewed sooner than that on the application of the guardian or the child. Then the child may be returned to the parents, may remain under temporary guardianship, or a permanent guardianship order may be issued. The parents could be required to pay money to the province for the care of the child. Efforts will be made to find permanent homes through adoption for children who are subject to a permanent guardianship order. Whenever possible, children will be placed in substitute family settings rather than institutional or group home environments. Foster parents must be approved and their homes inspected by child welfare workers. Efforts will be made to match foster families to children of similar cultural, familial and/or social heritage. If possible, agreements will be made with Indian bands to have native communities take care of their own children. A child who is the subject of a permanent guardianship order remains as such until she reaches the age of 18 (or later if involved in school or training), or is adopted or otherwise freed from guardianship. An adult who has an important and continuing relationship with such a child may apply to become a joint guardian with the director. If you as a parent or guardian are temporarily unable to care for your child, you may make an agreement with the director to provide support services to you so that your child will remain with you. You may also agree to give the director permanent guardianship or custody of your child. You will be breaking the law if you attempt to take a child from the custody the court has ordered unless you can prove that your actions were necessary to protect the child from harm. You must use the proper legal channels to change court-ordered custody or guardianship, e.g., by appealing to a higher court. Criminal Laws Relating To Child Abuse The Criminal Code imposes a duty on a parent or guardian to provide the basic necessities for her child until that child reaches the age of 16. The law also penalizes those persons who assault or sexually abuse children. In addition, the Criminal Code also attempts to protect children from moral corruption by making it an offence for anyone to engage in adultery, sexual immorality, habitual drunkenness or any other form of vice in the home or in the presence of a child. Amendments to the Criminal Code were passed in 1988 to create three new criminal offences. These amendments were designed to protect children from sexual abuse and provide for prosecution under the Criminal Code. The new offences include sexual exploitation (including child pornography) and invitation to sexual touching. The amendments also allow videotaped statements of the child to be used as evidence so the child may not have to testify in open court. DAYCARE AND OUT-OF-SCHOOL CARE SERVICES

Pre-school daycare centres and family dayhomes are licensed and administered by the provincial government. The average cost of daycare services in Calgary varies according to the age of the child, whether the centre is privately or publicly operated, who supplies the food and/or diapers, and whether or not subsidies are available to the parents. The amount of subsidy available varies according to the family income and the number of preschool aged children involved. Further information can be obtained from the district office of Alberta Child and Family Services. For children aged 6 to 12 years, out-of-school care programs are available. These programs, which must meet both provincial and municipal standards, Women and the Law 6th Edition, 2005 100


are monitored by the Social Services Department of the municipality concerned. To locate an approved out-of-school program, contact your city or municipal Social Services Department. Child care expenses are also deductible for income tax purposes up to a maximum allowable deduction, in whole or in part, depending upon the income of the supporting parent.

SEAT BELT LEGISLATION

Any child whose weight is 18 kg (39.6 Ibs) or less must be properly secured in a prescribed car seat unless you have a medical certificate signed by your doctor stating that the child cannot be restrained for medical reasons or other reasons relating to the size, build or other physical characteristics of the child. It is an offence not to restrain a child who fits within the above category and for whom you do not have a medical certificate. A judge can impose a fine up to $115. However, if you install a proper car seat after you have received a traffic ticket, the judge docs not have to fine you. If, within 15 days of receiving the traffic ticket, you install the car seat and advise the police of this fact, no further proceedings will be taken. Compulsory seat belt legislation for most other persons came into effect on July 1, 1987. This legislation requires that both the driver and passengers must wear seat belts when a car is being driven. In some cases, persons may be exempted from wearing a seat belt. People with a letter from their doctor stating they should not wear a seat belt for some medical reason will be excused. Also, people who must stop and get out of their vehicles frequently will be excused from wearing a seat belt, e.g. a garbage collector would not be required to wear a seat belt while working. If you do not have a legal excuse for not wearing your seat belt, you may be fined up to $115. It is also an offence if you do not keep the seat belts in your car in good repair. In court, it is often argued that a reasonable person would wear a seat belt to minimize any possible injury in the event of a car accident, and a person who is wearing a seat belt would not be injured to the same extent. This argument is called "contributory negligence" which simply means that you have been the cause of some of your own problems.

YOUNG PERSONS AND THE LAW

Minors and Their Rights In Alberta, a minor is a person under the age of 18. At 18, which is called the "age of majority," a person gets all of the legal rights and responsibilities of an adult. These include: the right to vote, the right to hold property, the right to drink alcohol, and the right to make decisions and assume obligations without a parent's consent. These decisions could involve marriage, medical and psychiatric treatment and signing contracts. The legal rights and obligations of minors are limited and their parents or guardians are responsible for their care and control until they reach the age of 18. Contracts Generally, minors cannot be legally bound by any contract they enter into unless it is a contract for the necessities of life. The necessities of life have been defined as food, clothing, shelter and, to a certain extent, education. The extent or extravagance that is allowed for these necessities will depend on the minor's circumstances. For example, a house has been found to be a necessity for a minor with a spouse and child. However, minors cannot always use their age as an excuse to escape responsibility for contracts that they have made. Alberta courts have found that minors may be bound by contracts from which they benefited in some way whether the object is a necessity or not (e.g., the purchase of a sports car). Therefore it is best for a minor to assume that she will be bound by any contract which she makes. Law Suits A minor cannot sue or bring a legal action against a party in a court of law in her own name but must have an adult sue on her behalf. There is an exception to this rule. A minor who is entitled to be supported by a parent and/or guardian may make application to the court to obtain or collect maintenance and it is not necessary for the application to be started in an adult's Women and the Law 6th Edition, 2005 101


name. If a minor damages property or injures another person, the parents may be liable for the damage if it resulted from improper supervision of the minor. Other Situations Mature teenagers may be considered old enough to make their own decisions about medical treatment such as birth control. The doctor must feel that the child understands the nature of the treatment and can give informed consent. If the child is 16 years of age or older, there generally is no problem. If a minor inherits or receives property as a prize or gift, an adult who is appointed as trustee has the right to sell or transfer that property for the minor's benefit until the minor reaches the age of 18. There is an exception to this rule. A court may allow a 17-year-old who is about to marry to sell or transfer any land that she has. If you wish to leave property to a minor in a will, you should name someone as trustee of the property and executor of your estate. Unless your will states that the trustee may use or allow the guardian to use the minor's property in whatever way is necessary for the minor's benefit, the inheritance will be tied up until the minor reaches the age of 18 or the age specified in your will. Where there is no trustee appointed and no one asks to be appointed, a government official called the Public Trustee will become trustee of the minor's estate. The Public Trustee is entitled to be paid for managing the minor's estate.

THE YOUTH CRIMINAL JUSTICE ACT

The Youth Criminal Justice Act ensures that young persons have the same rights as adults in the legal process, including those guaranteed under the Charter of Rights and Freedoms. Some of these rights include . the right to be informed of one's legal rights; . the right to bail; . the right to hire a lawyer and to obtain Legal Aid. In addition, the Act sets out clear procedures for court proceedings, penalties, reviews, appeals and record keeping. This means that all young persons must be treated uniformly and fairly. This will be outlined in more detail later on. Persons who are 18 years or older are tried in the adult system, and young persons between 12 and 17 are tried in the youth court system. Questioning of Young Suspects

If a young person is arrested and held in custody (i.e., detained) until her appearance in court, the officer in charge at the time the young person is detained must give, either orally or in writing, to the parent or person who has a legal duty to provide for the young person, a notice of the arrest of the young person. The notice must include the address where the young person has been detained and the reason for the arrest. A young person must be told that she is entitled to have a lawyer and parent or guardian present during any questioning. A young person must also be told that she does not have to make a statement to the police, but that anything she does say can be used as evidence in court. If there is no parent or guardian available, the young person may have another responsible adult present when the police or any other person in authority questions her. The young person can refuse to answer questions. If the young person agrees to answer questions, the police must first advise her of her rights and ensure that the young person understands those rights. The young person will then be required to sign a form indicating that the rights have been read to her, that she understands them, and that she is prepared to make a statement anyway.

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Alternative Measures Before a police officer can refer a matter to the formal extrajudicial sanctions program or lay a charge, they must consider whether if would be sufficient based on the principles of extrajudicial measures to: take no further action, warn the Young Person, administer a caution if a program has been established or with the Young Person’s consent, refer them to a program or agency in the community that may assist the Young Person not to commit offences. Examples include recreation, drug dependency or counseling programs. Appearance in Court First of all, get a lawyer or have Legal Aid appoint one of its lawyers through the Youth Counsel office. The Youth Criminal Justice Act states that every young person is entitled to legal counsel. It you cannot afford a lawyer or, if Legal Aid has advised the young person that she does not qualify for assistance, the young person should ask the judge to order that a lawyer be appointed to represent her. Do this at the time of her first appearance in court. Remember that the parents or guardians of young persons may be required to attend the court proceedings too. Generally, the parent or guardian will be required to give evidence to prove that the young person is under the age of 18. If a parent or guardian is not available, there are other ways to prove that the accused is a young person within the meaning of the Youth Criminal Justice Act and it will be up to the court and the Crown counsel to ensure that this is done. Court proceedings will take place to determine whether the youth is guilty or not. The youth court is an open court which means that any member of the public is free to attend unless the judge decides it is best to keep someone from the courtroom. The youth court must observe all the rules of evidence, which includes the rule that any confession must be voluntary. Ask your lawyer or Legal Aid counsel for more information on this. If the young person is found guilty, the judge has a number of penalties that she might consider. However, the judge might decide that she needs a predisposition report in order to choose the penalty that is right in the circumstances. If the judge is considering placing a young person in custody, she must order a predisposition report to he prepared. A predisposition report is a document which contains information about the youth's character, attitudes, previous conduct, home life, activities and future plans. The report is made after interviewing the young person, her parents, the victim (if there is one), and any other person who can provide helpful information. These sources might include teachers, lawyers or doctors. The penalties that a judge may order are called dispositions. The young person may receive an absolute discharge which means that she is free to go. The young person is considered to be convicted but she docs not get a criminal record for that offence. An absolute discharge is only available if it is in the accused person's best interest and not contrary to the interest of the public. The young person may receive a reprimand – similar to a warning by a judge. The young person could receive a fine up to a maximum of $1,000 or be ordered to compensate the victims by paying them money or performing a service for them personally or for the community in general. This type of compensation is more commonly known as restitution. If the young person is mentally or emotionally disturbed, she may be sent to a mental health facility, but this will only occur if the youth, the parents and the doctors all agree to this measure. If the youth court finds that a stricter sentence is required, the young person may be placed in custody. There are two types of custody under the Youth Criminal Justice Act. "Open custody" refers to community residential centres, group homes, child care institutions and forest or wilderness camps. "Secure custody" refers to special facility for the imprisonment of young offenders. The young person must never be jailed with adult offenders unless she has been tried under the adult court system. A convicted youth may appeal the sentence and/or conviction. If there is no appeal, or the appeal fails, the youth is placed in custody. The young person who has been placed in custody for a period of more than one year has the right to have her disposition reviewed at least once a year. Appeals A convicted young person may appeal the finding of guilt and/or the sentence imposed by the court. The appeal is made to a higher court. In the dispositions of all young persons placed in custody for a period of more than one year, custody orders are reviewed by the court at the end of one year from the time the sentence was handed down. Under certain circumstances, a case can be reviewed after the young person has served six months of a sentence. Women and the Law 6th Edition, 2005 103


The Youth Record

Under the Youth Criminal Justice Act there is a strict provision for the creation, maintenance, confidentiality and destruction of records. If the young person is not found guilty or the charges are dismissed or withdrawn, the records are destroyed. If the young person has pleaded guilty or been found guilty and has completed her sentence, she is deemed to have been absolutely discharged. This means that she is entitled to claim to outsiders, such as employees, that she has no convictions. However, the police and the courts will still have access to the records. After five years, provided that no new indictable offences have been committed, the record is automatically destroyed without the need to apply for a pardon, contrary to the case of adult offenders.

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W

omen and

H

ealth

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HEALTH CARE INSURANCE PLAN

Persons who are residents of Alberta are eligible for medical coverage under the province's healthcare plan. For the purposes of the plan, a resident is defined as a person who is lawfully entitled to be or remain in Canada and who makes her home in Alberta. Tourists, transients or visitors to Alberta are not considered to be residents, however full-time students and people here on work contracts may be. You must register yourself and your dependents in the plan. If you are working, your employer may arrange for your registration and for automatic deductions from your paycheque for the plan. Members of the Canadian Armed Forces or the Royal Canadian Mounted Police and inmates at a federal penitentiary are not eligible for registration; however, their dependents must be registered. If you were registered in the Plan by your spouse and he dies, contact your local Alberta Health Care Plan office to have the coverage transferred to your name. If you are separated or living common-law, or in a same sex relationship with an interdependent relationship agreement, you may register your spouse or partner for coverage. If you are divorced, each spouse will have to register separately. Children must be registered in the name of the parent who has custody. Contact your local Health Care Plan office to ensure that you have medical coverage. Who Is An Eligible Dependent? Your spouse or common-law partner or partner with whom you have an adult interdependent relationship and any children who are under 21 years, single, and wholly dependent on you for support are eligible dependents. Children who are single and dependent, full-time students and under the age of 25 are considered eligible dependents as well as children who are single, over 2l and wholly dependent due to physically/mentally disabled. The definition of children includes not only natural children, but adopted children, and wards for whom you are entitled to claim deductions for income tax purposes What Does The Plan Cost? The cost will depend on whether you are registered as a single person or as someone with dependents. You may be eligible to pay reduced premiums if your previous year's taxable income was below the level set by the Plan. You must qualify and apply for premium assistance. In some cases where your taxable income is over the minimum set by the Plan, but you are unable to pay premiums because of financial hardship, you may not have to pay (i.e. payment may be waived). You will have to make a formal application to your local Health Care Plan office if you need to have your premium payments waived or reduced. Premium assistance and waiver of premiums are decided on a yearly basis. You must apply each and every year if you wish to receive this special consideration. Senior citizens do not have to pay premiums for themselves or their dependents. Proof of age must be supplied at the time of your application. Widows or widowers receiving the Alberta Widows' Pension and their dependents are eligible for premiumfree coverage. You must apply to the Alberta Widows' Pension Program to obtain the free coverage. Are There Any Waiting Periods For Coverage? If you have moved to Alberta from another province, you are eligible for coverage on the first day of the third month after your arrival. In the meantime, you should arrange for coverage in the province from which you departed. If you have arrived in Alberta from a place outside of Canada, there is no waiting period provided that you apply for coverage within three months of the date on which you arrived in Alberta. Otherwise, you will not be eligible until the first day of the third month after your arrival. If you had already been registered in the Plan by a spouse or common law partner but you are now separated, divorced or widowed, or if you have since turned 21 or become fully independent, there will be no waiting period. Can I Get Extra Coverage? Extra coverage is available through Alberta Blue Cross and other extended health care programs. There is generally a cost involved for coverage under these plans unless you qualify for an exemption from payment, for example, senior citizens and their dependents, and widows or widowers receiving the Alberta Widows' Pension and their dependents will not have to pay for extra coverage for basic extras. If they wish more than the basic extras then they will pay for these. The amount paid by the Plan for any medical treatment that you require when you are outside of Alberta is based on fees paid in Alberta. If you become sick or hurt when you are out of Alberta, the medical bills could be much greater than the amount which your Alberta Plan will pay. Unless you have some additional coverage, you may be personally liable for any costs not covered by the Plan. The extra Women and the Law 6th Edition, 2005 106


expense could cause you serious financial hardship. Sometimes, a hospital will place restrictions upon you until the bill is paid. For example, a woman who has given birth to a child while on vacation outside of the country may not be allowed to remove her baby from the hospital until all hospital costs and doctors' fees are paid. In such situations it would be wise to have additional coverage available. Contact your local Health Care Insurance Plan for further information and application forms. Your travel agent may also have information on additional coverage for those who are travelling outside of Canada.

PATIENTS' RIGHTS

What Are A Patient's Rights? Every patient has the right to choose the doctor of her choice. Of course, the doctor does not have to accept you as a patient, but if a doctor approaches you and you do not want that doctor to treat you, you can refuse. Every woman should choose her doctor carefully. Ask around and find a doctor who has values similar to your own. For example, if you believe that a terminally ill person should not be kept alive by great medical efforts and machinery, but should be allowed to die naturally and with dignity, you will want to find a doctor who shares your views. Do not wait until you are ill to locate a doctor. You should find a doctor and discuss your major concerns at the first meeting. If a doctor is not interested in your views, you may want to find someone else. No one is allowed to touch you or treat you without your consent, except in special circumstances such as emergencies. The consent that you give should be informed consent. This means that you should know the purpose of the procedure, what the procedure will involve, and common side effects or consequences of the procedure, those side effects or consequences that are of particular importance to you and the alternative procedures, if any, which are available, before you agree to undergo certain procedures or treatment. In other words, you should know what you are consenting to. Ask questions. You are entitled to receive truthful answers. There are different ways of giving your consent. It can be oral, written, or implied from the circumstances. For example, your consent is implied if you line up to receive an injection and hold your arm out to the doctor when your turn comes. You may not have given any oral or written permission for treatment, but your actions indicate to the doctor that you agree to the treatment. If you are asked to sign a consent form for some medical procedure, read the form carefully. Do not sign the form if you do not understand all of it. If you want to agree to only part of the procedure, make changes to the form so that anyone who reads it will know to what you have agreed. A consent form should not be a "blanket" consent; it should be specific. For example, if you are going to undergo a biopsy on your right breast, the consent should be for the anaesthetic and the biopsy procedures. Unless you give the doctor more authority, she cannot remove your breast if the biopsy shows that you have cancer. Once a doctor agrees to treat you, she cannot refuse to finish the treatment without your consent or you may be left in some danger. Who Can Give Informed Consent? Normally, your own consent is needed before any treatment is given. If there is no emergency but you are physically or legally unable to consent, the doctor should obtain consent from a person who has the authority to give consent on your behalf. For example, the parent or guardian of a child must consent to any treatment received by the child. The guardian of an adult who is not legally competent must consent to any treatment received by that person. If your spouse is unable to consent to treatment, (for example, he is unconscious), the doctor will seek your consent to treatment. Parental consent is normally required for non-emergency treatment of a minor. Sometimes, the consent of a minor is acceptable if the child seems mature and is able to understand the nature and the consequences of the treatment. This would be particularly true in the case of a girl over 16 seeking birth control or abortion procedures. In other cases, doctors or hospitals may be cautious due to the possibility of a lawsuit. If your child is injured at school and you have not given written authority to the school to obtain treatment, your consent will be necessary before any treatment is given (unless it is a real emergency). Parents who leave their children with another adult for long periods of time, such as a vacation, may want to give that adult written authority to obtain whatever medical treatment is necessary for the children during the parents' absence. The consent of any person who is mentally competent should be obtained from that person before treatment is given. If a person is not competent, consent must be obtained from the person who has the authority to give it.

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What About An Emergency Situation? A doctor has the privilege to treat without consent in a real emergency situation. If the doctor is sued for her actions, she will have to prove that the situation required immediate action to save the patient's life. The doctor will also have to show that the patient had not specifically objected to that treatment. For example, if you are injured in a car accident and require a blood transfusion but your doctor knows that you object to blood transfusions on religious grounds, the doctor cannot give you a transfusion without a court order. What Is Medical Negligence? Medical negligence is improper or substandard treatment given to you by your doctor. Hospitals and other medical staff can also be guilty of medical negligence. Doctors usually have to provide you with a level of care that would be expected of an ordinary competent medical doctor. No more, no less. The level of care depends on a number of factors including the type of doctor that you have (e.g. whether you have a general practitioner or a specialist), the location, the facilities available, etc. For example, the level of care expected from a doctor whose patient is in a large hospital may be greater than that expected from a doctor who cares for a patient in a farmhouse with few conveniences. For negligence to exist there must be a doctor and patient relationship; the relationship must be one that requires the doctor to meet a certain standard of care when treating the patient; and the doctor must fail to meet that standard, and the patient must suffer some injury or damage because of the doctor's failure to meet the standard. Must The Doctor Keep My Secrets? Doctors, as well as other medical personnel and hospitals, now have a legal obligation under the Health Information Act (www.oipc.ab.ca) not to reveal anything about a patient’s condition to someone else without the patient’s consent. There will be some circumstances that are unique and specific, such as death or injury, where information can be released to family members where such disclosure is not contrary to the express request of the individual. However, if for some reason your doctor was called as a witness, she could be forced to tell the court things that you have told her. The right to be excluded from being forced to reveal conversations made during a professional relationship is called privilege. By law, lawyers are the only professionals who are not allowed to reveal in court those confidences told to them by a client. While a doctor may have to disclose your secrets in court, that does not give her the right to reveal the information anywhere else. What Are My Remedies? If your doctor or hospital has disclosed confidential information without your consent, or refused to provide, upon request, your personal health information, you may apply, in writing, and within 60 days of your cause of complaint arising, to the Information and Privacy Commissioner to review the matter. Can I Sue My Doctor? Yes. If your doctor has revealed confidential information or treated you without your consent or if your doctor has been negligent, you may sue your doctor for negligence or breach of contract. If you believe that you have a legal action against your doctor, contact your lawyer or Legal Aid office for further information. If your doctor has touched or treated you without your consent, you may also be able to bring criminal proceedings against her. Some examples of criminal proceedings brought against physicians are sexual assault, criminal negligence, and unlawful removal of organs from dead bodies. You should contact the police or Crown Prosecutor if you wish to press charges. If the police do not charge your doctor, you may lay the charge yourself. This involves the laying of a private information before a Justice of the Peace. Before proceeding with criminal charges, you must make sure that you are prepared to follow through with them. If the police or Crown refuse to act, it may be wise to discuss the matter with your lawyer or Legal Aid office before continuing. Doctors in Alberta are governed by the Alberta College of Physicians and Surgeons. The College has the authority to discipline doctors who do not provide a proper standard of care or who are guilty of professional misconduct. Contact the Alberta College of Physicians and Surgeons for further information.

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What About Assisted Suicide? In Supreme Court of Canada decision, R. v. Rodriguez (1993), it was held that Section 241(b) of the Criminal Code, which prohibits assisted suicide, is constitutional, even though it infringes on the "security of the person." In other words, assisted suicide is still illegal. It was determined by the court that personal autonomy is not as important as the "state's interest" and the overall value of the sanctity of life. People are not given legal approval to seek assistance in carrying out their own decision to die.

AUTOPSIES

An autopsy is an examination of the body of a dead person (or animal) by a medical specialist (i.e. pathologist) to find out the cause of death. Occasionally, autopsies are performed even when the cause of death is known, because the information that is obtained may be helpful for future treatment or research purposes. By law, autopsies are usually required if a death seems suspicious or unnatural, or occurs while a person is held in custody or on a psychiatric ward. Autopsies are also required if a dependent adult or a ward of Social Services dies while the person is a patient in a hospital, home or institution. In Alberta, a doctor called the medical examiner is responsible for the investigation of suspicious deaths. The medical examiner will usually decide if an autopsy must be performed. If you have any reason to suspect someone has died an unnatural death or in suspicious circumstances, you should contact the police department. The police will conduct the initial investigation and will advise the medical examiner of their findings. Sometimes a hearing called a Public Fatality Inquiry (inquest) is held to review the circumstances of a death, to find out how the death occurred, and to make recommendations for improvements to reduce the risk of this kind of death in the future. An inquest is not a trial, it is a fact-finding investigation where witnesses are called and evidence is reviewed. In Alberta, the Fatality Review Board will decide whether or not an inquest should he held. The medical examiner may suggest that an inquest should he held, but the Board has the final decision. The Board is made up of a doctor, a lawyer, and a lay person. If you are called to be a witness at an inquest and you want to know what your legal rights are, you should contact a lawyer or Legal Aid office. While an inquest is not a trial, any evidence that comes out during an inquest might he used in criminal or civil proceedings or may have other serious consequences for you.

TISSUE TRANSPLANTS

In Alberta, if you are I8 years or over and mentally competent, you may give oral or written consent to have any organ or tissue removed from your body while you are alive, for transplant purposes, or after you die for therapeutic purposes, scientific research or medical education. The written consent must he signed by you. The oral consent must he made in the presence of at least two witnesses who will not be involved in the removal or transplant procedure or an agent under a Personal Directive who states consent has been given. If you die and no consent has been given, your spouse or closest relative will be able to give consent for the removal and transplant on your behalf. They are not entitled to consent to such procedures if they are aware that you would have objected to it. The Human Tissue Gift Act sets out strict rules as to making a determination of death of a proposed donor. This is to make sure that there is no wrongful conduct involved when organs, are wanted for transplant purposes. The Act provides that your name must not be revealed unless you (or your family) allow your identity to be revealed. Consent forms are available on the back of every Alberta driver's licence form. In addition, consent forms are available from the HOPE Coordinator at every major transplant centre. (See the telephone numbers in the Resource Section of this booklet.)

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ABORTION

Abortion means the premature termination of a pregnancy, that is, the interruption of a pregnancy before the fetus is able to survive outside its mother's womb. An abortion which occurs without a known cause is called a spontaneous abortion or miscarriage. One that occurs due to artificial means is called an induced abortion. Until the decision by the Supreme Court of Canada in R. v. Morgentaler in January 1988, the Criminal Code prohibited abortions unless they were performed by a qualified doctor, in an approved hospital and after approval by the therapeutic abortion committee of that hospital. These rules resulted in significant delays and discrimination against women living in regions of the country where there were no approved hospitals with therapeutic abortion committees. The court ruled that this law was inoperative, as being contrary to the Charter. Attempts by various interested parties, such as the woman's parents, husband or boyfriend, to prevent an abortion by means of the civil remedy or an injunction have been struck down by the courts. Doctors are restricted to performing abortions only by the rules laid down by their governing body in each province, being the College of Physicians and Surgeons. In Alberta, the College allows a physician to perform an abortion up to 20 weeks of gestation. Abortions are fully covered by Alberta Health Care (except at private clinics, which are only partially covered by AHC). Hospitals and doctors no longer require a husband's consent for married woman or parents' consent for a woman between 16 and 18. The law is unclear regarding consent for a woman under 16. Discuss the issue with your doctor and lawyer.

SEXUALLY TRANSMITTED DISEASES

What are S.T.D’s? Sexually Transmitted Diseases are any contagious diseases which are spread by sexual contact with another person and which usually appear on the genitals. Because Sexually Transmitted Diseases have become so wide-spread and can have such serious consequences, the law attempts to control their spread. The provincial Public Health Act requires everyone who knows or suspects that she has been infected with a Sexually Transmitted Disease to see a doctor immediately for diagnosis (i.e. by a blood test or a vaginal culture) and treatment. The Act also requires all doctors and clinics to immediately report all cases of S.T.D. to the Department of Health and to teach all persons who are suffering from S.T.D. how to prevent the spread of the disease. If you are diagnosed as having a Sexually Transmitted Disease, you should immediately inform all of your sexual partners. This may be embarrassing for you to do, but it is necessary so that others may seek treatment and abstain from sexual relations in order to prevent the spread of S.T.D. To locate a S.T.D. clinic in your area, look in the phone book under City of Calgary (pink pages) under Sexually Transmitted Disease Clinic or contact the local Department of Health.

BIRTH CONTROL AND STERILIZATION

Where Can I Get Information About Birth Control? Family Planning Clinics in Alberta offer counselling and information. Referrals are also available from various government and private agencies such as Alberta Health Units and Birth Control Associations. You should ensure that you are approaching a reputable agency by inquiring as to its standards and accountability. (Community agencies and private clinics should be accountable to either Family and Community Support Services, Alberta Family and Social Services, Regional Health Women and the Law 6th Edition, 2005 110


Authorities or the Alberta College of Physicians and Surgeons.) If you require birth control information, you should contact your local Health Unit, government clinic or talk to your own doctor. A minor may ask a doctor to make a confidential claim submission to Alberta Health Care so that the charge for medical services does not show up on the health care statements. Voluntary Sterilization

Sterilization renders a woman permanently infertile (i.e. incapable of bearing children). Many couples choose sterilization as a method of birth control. A common method of sterilization is called a tubal ligation which involves surgery to cut and tie off the fallopian tubes. This prevents the ovum from reaching the uterus and being fertilized. Women who have had Bleier clips inserted should have the clips tested by their doctor. The Bleier clips have been shown to have a 10% failure rate. A test called a hysterosalpingogram will show if the clips are working. There are no laws prohibiting sterilization but a doctor may refuse to perform a tubal ligation on moral or religious grounds. Although a spouse's consent is not required by law, some doctors may require that a woman obtain her husband's permission before proceeding. As well, some doctors will refuse to perform a tubal ligation if a couple has no children or if the couple is particularly young, because sterilization is intended to be permanent. If you wish to undergo a sterilization procedure, contact a Birth Control Association, Family Planning Clinic or a Planned Parenthood agency for a referral. Involuntary Sterilization In the past, many mentally handicapped women were subjected to involuntary sterilization for reasons that may not have been in their own best interests. Under the Dependent Adults Act of Alberta, and similar legislation in other provinces, all that was necessary was the consent of the dependent adult's legal guardian. However, in 1986, the Supreme Court of Canada held that sterilization for therapeutic purposes could be carried out only in extreme circumstances, after a full judicial hearing, at which the woman to be sterilized is independently represented by a lawyer, and upon proof that the procedure is in the best interest of the woman.

MIDWIVES

Alberta has passed legislation which recognizes midwives as professional members of the health care system. The Health Disciplines Act and Regulations dictates the provincial standards required in the education, licensing and practice of midwives. It also sets the standards of conduct and the terms to conduct practice reviews.

BIRTH TECHNOLOGY AND LEGAL ISSUES

On November 30, 1993, the Federal Government released Proceed With Care: The Final Report of the Roval Commission on New Reproductive Technologies. In the Report, the Commissioners recommend steps that must be taken to prevent harm to individuals, particularly women and children, and the violation of important social values that would come from uncontrolled use of new reproductive technologies. The Commission recommended that those uses of technology that contravene Canadian ethical and social values be prohibited, while other uses should be regulated to ensure that only accountable, beneficial use of acceptable technologies occurs. This requires two things: legislation to outlaw certain activities, and a system to oversee, license and monitor other activities in this field. What follows is a brief summary of some of the types of new reproductive and genetic technologies and their implications. Advancements have been made in birth technology to help those who are unable to conceive a child in the usual manner to conceive one in some other way. This is called artificially assisted conception. Basically, there are four types of artificially assisted conception: Women and the Law 6th Edition, 2005 111


(1) Artificial Insemination, which occurs when the sperm of the donor (usually someone other than the husband) is implanted in the woman to permit natural fertilization of the female egg (ovum) by the sperm. Family law has not kept pace with the realities created by artificial insemination. Such families and sperm donors could be vulnerable to challenges like custody, access, inheritance and support for artificially inseminated children. This vulnerability encourages secrecy around artificial insemination, which may not be in the best interests of artificially inseminated children or families. (2) In Vitro Fertilization, where an egg is removed from the woman and fertilized in a test tube with the sperm of the male until it is mature enough to be placed in the woman through her cervix. To date, IVF has been proven effective for only one category of infertility disorders - those involving complete blockage of the fallopian lubes. (3) Embryo Transfer, where a fertilized egg is flushed out of a woman and transferred to an infertile woman. The egg was fertilized with the sperm from the infertile woman's husband or partner. (4) Surrogate Motherhood, where a couple enters into a contract with another woman (surrogate mother) who agrees to carry the couple's child. The surrogate mother may be impregnated through artificial insemination or in vitro fertilization. Under the terms of the preconception contract, the surrogate agrees to give the child to the couple at birth. A number of legal issues arise from these technological developments. Most of them have not been considered by the courts, but any woman who will be involved in some form of artificially assisted conception should be aware of the potential problems. Our present laws do not directly deal with these issues. However, judicial intervention into pregnancy and birth has increased, in part because of technological and medical advancements allowing the fetus to be seen as a separate entity from the pregnant woman. This has positive consequences – increased awareness of risks to the fetus with avoidance of harmful exposures and treatment of disease in utero. Yet it also has the potential to establish an adversarial relationship in which a pregnant woman's autonomy is compromised. This has serious negative implications for all women who become pregnant. According to the Commission, a better alternative to judicial intervention in reaching the goal of fetal well-being is care and assistance to the pregnant women: this respects the life and dignity of both the woman and fetus. The traditional views of motherhood have been slowly changing. Increased equality for women and medical-scientific progress will bring new legal issues to the attention of the courts and the public.

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Accommodation for Battered Women Banff Community Resource Centre (403) 760-3200 (Crisis/urgence) 1-800-813-4138 Brooks Brooks & District Women's Safe Shelter Society (403) 362-2766 (crisis/urgence) (403) 793-2232 Calgary Awo Taan Native Women's Shelter (403) 531-1970/(403) 531-1972 (crisis/urgence) (403) 531-1976 Brenda Strafford Centre (403) 270-7240 Calgary Women's Emergency Shelter (403) 234-SAFE (7233) Discovery House (403) 670-0467 Sheriff King Home (403) 266-4111 (crisis/urgence) (403) 266-0707 Camrose Camrose Women's Shelter (Brigantia Place) (780) 672-1173 (crisis/urgence) (780) 672-1035 Cold Lake The Dr.Margaret Savage Women's Crisis Centre (780) 594-5095 (crisis/urgence) (780) 594-3353 Desmarais Big Stone Cree Nation Women's Emergency Shelter (780) 891-3905 (crisis/urgence) (780) 891-3333 Edmonton Edmonton Women's Shelter Ltd. (W.I.N. House) (780) 471-6709 (crisis/urgence) (780 479-0058 LaSalle Residence (780) 482-2190 Lurana Shelter (780) 429-2002 (crisis/urgence) (780 424-5875

W.I.N.G.S. of Providence Society (780) 426-4985 Women's Emergency Accommodation Centre (780) 423-5302/(780) 424-7543 Enilda Sucker Creek Women's Emergency Shelter (780) 523-2929 (crisis/uirgence) (780) 523-4357 Fairview Crossroads Women's Shelter & Resource Centre (crisis/urgence) (780) 835-2120 Fort Chipewyan Mikisew Cree First Nation (Paspew House) (780) 697-3329 (crisis/urgence) (780) 697-3323 Fort McMurray Unity House (780) 743-4691 (crisis/urgence) (780) 743-1190 Grande Cache Grande Cache Transition House Society (780) 827-3776

Lloydminster Lloydminster Interval Home Society (780) 875-0966 Medicine Hat Medicine Hat Women's Shelter Society (Phoenix Safe House) (403) 527-8223 (crisis/urgence) 1-800-661-7949 Morley Eagle's Nest Stoney Family Shelter (403) 881-2000 Peace River Peace River Regional Women's Shelter (780) 624-3466 Pincher Creek Pincher Creek Women's Emergency Shelter (403) 627-2114 (crisis/urgence) 1-888-354-4868 Red Deer Central Alberta Women's Emergency Shelter (403) 346-5643 (crisis/urgence) 1-888-346-5643

Grande Prairie Odyssey House (780) 532-2672 (collect calls accepted)

Sherwood Park Strathcona Shelter Society Ltd. (A Safe Place) (780) 464-7232 (crisis/urgence) (780) 464-7233

High Level Safe Home (780) 926-2277 (crisis/urgence) 1-888-926-0301

St. Paul Columbus House of Hope (780) 645-5132 (crisis/urgence) (780) 645-5195

Hinton Yellowhead Emergency Shelter for Women Society (780) 865-4359 (crisis/urgence) 1-800-661-0937

Strathmore Community Crisis Society-Regions (403) 934-6643 (crisis/urgence) (403) 934-6661

Hobbema Loretta's Safe House (780) 585-4470

Whitecourt Wellspring Family Resource & Crisis Centre (780) 778-6209 (crisis/urgence) 1-800-467-4049

Lac La Biche Hope Haven Women's Shelter (780) 623-3104 (crisis/urgence) (780) 623-3100 Lethbridge Native Women's Transition Home Society (403) 329-6506 YWCA Harbour House (403) 320-1881

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Other Emergency Services for Battered Women Calgary Calgary Counselling Centre (403) 265-4980 Department of Social Services (403) 268-2489 (City) Emergency Services (403) 268-2484 Women Plus (403) 228-0293 YWCA (403) 266-0707

Alberta Tissue Transplant Program H.O.P.E. Program Calgary: (403) 944-8700 Edmonton: (780) 407-8411

Birth Control Information Calgary Birth Control Association (403) 283-5580 Calgary Health Services Family Planning Clinics Downtown: (403) 944-7111 South: (403) 943-9510 Sunridge NE: (403) 250-8053

Edmonton Emergency Response Department Emergency Services (780) 496-3800

Planned Parenthood (403) 283-8591

In other areas of the province, contact the police who will in turn contact the on-call emergency worker in your area.

Edmonton Planned Parenthood (780) 423-3737

Accounting Institute of Chartered Accountants of Alberta Referral Service Edmonton: (780 424-7391 Other Alberta: 1-800-232-9406

Adoption Resource Centre Calgary Adoption by Choice (403) 245-8854 Adoptive Counselling (403) 297-6038 Edmonton Children's Services-Adoption Information Unit (780) 496-3546

Alberta Government Toll Free Service Line If you are unable to locate the provincial government department or service that you require, call the Government of Alberta. The operator can provide you with information on provincial government departments. Alberta Government Toll Free Service 310-0000

Lethbridge Family Planning Centre (403) 320-0110

Child Abduction Information Child Find Alberta (403) 270-3463 International Social Services (613) 236-6161 Child Abuse Information Hotline: 1-800-387-KIDS (5437) 24 hour emergency toll-free number for reporting suspected cases of child abuse

Community Services and Resources For information about community, government and social Services in Calgary, call 211 for assistance. If you are unable to locate a non governmental service The following organization provides information on services In your area and makes referrals:

Family & Community Support Services Association of Alberta This association has over 200 offices throughout Alberta to Assist you. You may access their alphabetical list of offices Through their website: www.fcssaa.ab.ca/FCSS Programs/Program Contact List.

Complaints about Representation of Women in the Media Canadian Advertising Foundation Advertising Advisory Board 305, 1240 Bay St, Toronto, ON M5R 2A8 (416) 961-6311 Canadian Radio & Telecommunications Commission 1 Promenade du Portage, Hull, QU K1A 0N2 (819) 997-0313 Mediawatch (416) 408-2065 FAX: (416) 408-2069 Email: info@mediawatch.ca Consumer Information Centre Provides information about family finances, advises Debtors, arranges settlements between debtors and Creditors and landlord and tenant Toll free 1-877-427-4088 . Calgary: 301, 7015 Macleod Trail S., Calgary, AB T2H 2K6 Edmonton: 3rd fl., Commerce Pl., 10155-102 St., Edmonton, AB T5J 4L4 Lethbridge: 315 YPM Pl., 530-8 St S., Lethbridge, AB T1J 2J8

Custody Mediation Program Calgary

(403) 297-6981

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Health Care Insurance Plan Calgary Edmonton

(403) 297-6411 (780) 427-1432

Human Rights Calgary Alberta Human Rights Commission 310, 525-11 Ave SW., Calgary, AB T2R 0C9 (403) 297-6571 Edmonton Alberta Human Rights Commission Standard Life Centre, 8 fl., 10405 Jasper Ave., Edmonton, AB T5J 4R7 (780) 427-7661

Elizabeth Fry Society Calgary: (403) 294-0737 Edmonton: 1-866-421-1175 For assistance in other areas, contact The John Howard Society of Alberta Email: www.elizabethfry.ab.ca Law Society of Alberta Calgary: (head office for Alberta) 600, 919-11 Ave SW., Calgary, AB T2R 1P3 (403) 229-4700/1-800-661-9003 Lawyer Referral Service Calgary: (403) 228-1722 Other Alberta: 1-800-332-1110 LEAF Women's Legal Education & Action Fund 1-800-661-5323 Legal Aid Society of Alberta LEGAL ASSISTANCE

Canada Human Rights Commission 308, 10010-106 St., Edmonton, AB T5J 3L8 1-800-999-6899

Immigrant Aid Calgary Immigrant Aid Society (403) 265-1120 Calgary Immigrant Women's Centre (403) 263-4414 Calgary Catholic Immigration Society (403) 262-2006 Immigrant Vocational & Language Referral Centre (403) 262-2656 Lethbridge Family Services (403) 327-4545

Legal Resources Calgary Legal Guidance (403) 234-9266 Dial-A-Law Calgary: (403) 228-1722 Other Alberta: 1-800-332-1110 Edmonton Centre for Equal Justice (780) 702-1725

Calgary 1100, 665-8 Ave SW., Calgary, AB T2P 3K7 (403) 297-2260 Edmonton 300, 10320-102 Ave., Edmonton, AB T5J 4A1 (780) 427-7575 Fort McMurray 717 West Tower, 9915 Franklin Ave., Fort McMurray, AB T9H 2K4 (780) 743-7356 Grande Prairie 1301 Provincial Bldg., 10320-99 St., Grande Prairie, AB T8V 6J4 (780) 381-5194 Lethbridge 1102 Lethbridge Centre Tower 400-5 Ave S., Lethbridge, AB T1J 4E1 (403) 381-5194 Medicine Hat 304 Provincial Bldg., 346-3 St SE., Medicine Hat, AB T1A 0G6 (403) 529-3553 Peace River Provincial Bldg., 9621-96 Ave., Box 6, Bag 900, Peace River, AB T8S 1T4 (780) 624-6250 Red Deer Room 604, Provincial Bldg., 4920-51 St., Red Deer, AB T4N 6K8 (403) 340-5119 St. Paul 4902-50 St., PO Box 121, St. Paul, AB T0A 3A0 (780) 645-6205

Wetaskiwin Main fl., Provincial Bldg., 5201-50 Ave., Wetaskiwin, AB T9A 0S7 (780) 352-7011 (local calls only) (780) 361-1331 (outside calls) Whitecourt 2nd fl., Provincial Bldg., 5020-52 Ave., Whitecourt, AB T7S 1N2 (780) 778-7178 Siksika Nation Legal Aid Office PO Box 1609, Siksika Nation, AB T0J 3W0 (403) 264-7250 (Calgary direct) 1-800-551-5724 LAW OFFICES Central Alberta Law Office 202, 4802-51 Ave., Red Deer, AB T4N 4H3 (403) 340-7730 Youth Criminal Defence Office 6th fl., Melton Bldg., 10310 Jasper Ave., Edmonton, AB T5J 2W4 (780) 422-8383 Youth Criminal Defence Office 600, 444-5 Ave SW., Calgary, AB T2P 2T8 (403) 297-4400 Family Law Offices: Calgary: 400 Dominion Bldg., 665-8 St SW., Calgary, AB T2P 3K7 (403) 297-6380 Edmonton: 700 Melton Bldg., 10310 Jasper Ave., Edmonton, AB T5J 2W4 (780) 415-8800

Legal Resource Centres Calgary Women's Centre (403) 264-1150 Crownest Pass (403) 562-8000 Student Legal Assistance Calgary: (403) 220-6637 Edmonton: (780) 492-2226 Native Counselling Services of Alberta Calgary: (403) 237-7850

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Maintenance Enforcement Program (MEP)

Victim Financial Benefits Edmonton

Calgary Edmonton Other Alberta

310-0000 (780) 422-5555 1-800-465-5878

Office of the Children's Advocate Calgary (403) 297-8435 Edmonton (780) 427-8934 Office of the Public Guardian Calgary (403) 297-3364 Edmonton (780) 427-0017 Office of the Public Trustee Calgary (403) 297-6541 Edmonton (780) 427-2744 Police Victim Services Calgary Victims/Crisis Unit (403) 268-8398 Edmonton Victims/Crisis Unit (780) 421-2216 In other areas, call the local Court House Or RCMP detachment.

(780) 427-7217

Vital Statistics For all areas in Alberta, call 310-0000 and ask for Vital Statistics, and you will be given the appropriate number.

Women’s Issues (General Information) Calgary Status of Women Action Committee (403) 245-3441 Status of Women.Canada 1-866-966-3640 Edmonton Support Network (780) 482-0198

Sexual Assault Centres Alberta Association of Sexual Assault Centres www.aasac.ca (lists all sexual assault centres in Alberta) Calgary Calgary Communities Against Sexual Abuse Crisis Line (403) 237-5888 Sheriff King Home (403) 266-0707 Women's Emergency Shelter (403) 234-SAFE (7233) Central Alberta Sexual Assault Centre Red Deer (403) 340-1120 Sexual Assault Centre of Edmonton Edmonton (780) 423-4121 (crisis) (780) 432-4121 Distress Line for SW Alberta Lethbridge (403) 327-7905 (toll free) 1-888-787-2880 Lloydminster Sexual Assault Centre Lloydminster (306) 825-8255 Aids/Sexually Transmitted Disease Information 1-800-772-2437

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Abduction kidnapping Access permission granted, by agreement or court order, to a parent or any other person who does not have custody, to see a child Acquittal found “not guilty” of an offence Adoption a legal process in which the legal rights and duties of the natural parents towards a child are terminated and similar rights and duties are given to the adoptive parents Adultery voluntary sexual intercourse between two persons of the opposite sex, one of whom is married to another person Adversarial acting as an opponent, as an enemy Affidavit a written statement for use as legal evidence, sworn under oath to be true Affiliation order an order that a certain male is the biological father of a child and must provide financial support for the child Alimony support payments to a spouse Amicus curie Latin: “friend of the court”. In Alberta, also refers to a lawyer appointed to represent a child during a parental custody dispute Annulment declaration by the court that a marriage never existed Apportionment division into shares Appeal a request that a higher court review a decision Arrears the balance of money owing because of missed support payments Asset money or other property available for the payment of debts

Beneficiary one who is entitled to receive a benefit under the terms of a trust, will or insurance policy Bequest gift of personal property made by will “Best interests of the child” Doctrine the needs of the child supercede any other considerations in determining the issue of custody or access Certificate of Divorce the final divorce order which leaves the parties free to remary Charge criminal: statement of offence Child abuse physical, sexual or emotional harm done to a child Child neglect failure to provide a child with the necessities of life and proper care; can also be a form of abuse Collusion one or both spouses or any other person agree to make up evidence of grounds for divorce in order to more easily obtain a divorce Condonation one spouse's forgiveness of the other spouse's committing a matrimonial offence such as adultery Connivance one spouse's encouragement given to the other spouse to do something which would give the first spouse grounds for divorce Consent to agree to what someone requests; to give permission Constructive Trust a relationship with respect to property requiring the person who holds title to the property to share the property with another because total retention of the property by the registered owner would be unfair Consummate a Marriage to complete it by sexual intercourse between the partners after the marriage ceremony

Contemplate to consider; to have in view as a possibility Conviction found guilty of an offence Corroborative further evidence to support other evidence of a fact Custody having primary responsibility for and primary care and control of a child Damages compensation, usually in the form of a money payment, to the winner of a lawsuit Defendant party against whom a lawsuit is brought; the person sued Dependent Adult mentally disabled person over 18 years of age who has a guardian and/or a trustee appointed by a court order Director of Maintenance Enforcement the person empowered by the Maintenance Enforcement Act to collect support payments Discrimination unequal treatment Disposition criminal; sentence imposed by a judge Divorce legal termination of a marriage Dower Rights those rights given to a married person which entitle that person, after the death of his or her spouse, to receive a life interest in certain property owned by the deceased spouse during the marriage Enact to make into law Estate the deceased's personal possessions, money and real estate, to be divided among the heirs Executor (-trix) person appointed in a will to carry out the terms of a deceased person's will

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Exclusive Possession the right of a spouse to have sole possession of the matrimonial home, thus precluding the other spouse from living there Exemption tax definition: reason for which a certain sum of income is not taxable (e.g.,exemption for dependents) Grounds reason or situation which gives cause for legal action (e.g., grounds for divorce) Guardian person who is responsible for the well being of a child, or provides for a dependent adult's daily needs, but who does not necessarily also manage their finances Indictment trial procedure for trying serious (indictable) offences and/or offenders Intestacy dying without having made a will Liability a legal obligation, such as a debt Limitation time period within which one may sue another party (e.g., breach of contract; 2 years) Joint Custody where more than one person assumes equal responsibility for the physical, moral and emotional development of a child and has equal decision-making power in all matters concerning the child Judgment of Divorce The divorce document that proclaims the parties' marriage is terminated and the terms of the divorce. Following the Judgment of Divorce, the parties usually wait 31 days before the Certificate of Divorce is issued and the divorce becomes final. Judicial Separation a separation of husband and wife by a decree of the court Maintenance money payment by one spouse to support his or her children and/or former spouse (also referred to as spousal and/or child support) Maintenance Order any court order requiring an individual to provide money for the care and support of others

Marriage In Alberta, the legal union of one man and one woman as husband and wife, creating certain legal rights and obligations towards each other. In some other provinces, such as British Columbia and Ontario, it is the legal union of two people. Matrimonial Offences actions which constitute grounds for divorce (e.g., adultery, cruelty) Matrimonial Property Order court order outlining how the property of the marriage is to be divided between the spouses Mediation process whereby a neutral third party assists spouses to resolve issues in dispute between spouses Mental Cruelty a course of conduct on the part of one spouse toward the other spouse which can endanger the mental and/or physical health and well-being of the other spouse to such an extent as to preclude the continuance of the marital relationship Non-consummation lack of sexual intercourse after the marriage ceremony “Non-separation of siblings� Doctrine children of one family are not to be separated to allow each of the separated parents to have custody of one or more children Ordinarily Resident Before a divorce can be granted, the spouse asking for the divorce must have lived for one year in the province where she is filing documents for divorce Paternity Suit legal action to establish that a certain male is the biological father of a certain child Personal Property all property except real estate Petitioner person who commences legal action by petition, such as adoptioin proceedings Plaintiff party who starts a lawsuit

Predisposition Report report on the history and present behaviour of a young offender; used by a judge to help determine a suitable sentence Pre-nuptial Agreement an agreement entered into by prospective spouses prior to marriage whereby the property rights of each spouse is determined Probation criminal: release of a convicted person into the community under conditions ordered by a judge (e.g., report to a probation officer) Putative Father male alleged to be the father of a child Reciprocal given or received in return Respondent person against whom a petition is filed Restitution method of compensating for financial loss or damage incurred during the commission of a crime (e.g., Reimburse owner for cost of a broken window) Review Criminal: evaluation of a sentence, periodic or not; usually applies to administrative decisions (e.g., a young offender's sentence will be reviewed once a year, to determine if it is still appropriate) Separation decision by spouses to live apart; often, the first step in a divorce Separation Agreement formal written agreement between spouses deciding to separate; may settle issued such as custody, access, property division, etc. Spouse In Alberta, a man or woman who is married or living in a common-law relationship Summary court procedure for trial of persons accused of less serious (summary conviction) offences

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Support money payment by one spouse or partner to support his or her children and/or former spouse or partner (also referred to as maintenance) Surrogate Court court that is concerned with the validity of wills, the administration of estates of deceased persons and dependent adults Survivorship right whereby a co-owner of property held in joint tenancy is entitled to full ownership of the property after outliving anyone else who had an interest in the property Testimony a witness' sworn description of events or persons Trustee a person appointed under a will to carry out a trust, or a person appointed to manage the financial affairs of a dependent adult Variation Order a court order that changes the original order Wardship situation where the province is appointed the office guardian of a child

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Women and the Law in Alberta  

This booklet is the result of the ongoing commitment of the Calgary Association of Women and the Law to improve the status of women by infor...

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