Calgary legal guidanCe and assoCiation of
The information contained in this publication provides general legal information only and is not intended to replace expert legal
advice of any kind. The contents of this publication in whole or in part may only be reproduced with the written permission of
Calgary Legal Guidance.
This publication is a revision of a booklet called Women and the Law in Alberta published in 2005 by the Calgary Association
of Women and the Law (CAWL). The very original booklet was published in 1978 and revisions to it were published in 1983,
1985, 1989, and 1995.
This publication is available online at: www.lawforalbertawomen.ca,
and in print from Calgary Legal Guidance.
We live in a society that is rapidly changing and growing. This makes Alberta an exciting and great place to live, however be-
cause of the fast pace and size of our province many of our citizens do not have ready access to community and legal resources
when they are in need.
This booklet is meant to make a traditionally complex area of knowledge easier to understand and more accessible. We
believe that many Albertan women will benefit from this resource, including those who are new to the English language, have
no background in the law, those who cannot afford legal advice and those in remote communities without internet access. Al-
though it is not meant to replace expert advice it will be a starting place and a guide for women who don’t know where to look.
We believe that information is power and women with the right information are better able to seek what rightfully belongs
to them, and to make free, informed choices. In this way, we hope this resource will not only educate women in the province
but also serve to empower them.
This booklet would not have been possible without the vision of Kim Feodoroff and Mary Lynn Dorsey at Calgary Legal
Guidance (CLG), the project co-ordination, research and editing by Stephanie Charlebois and Amna Qureshi, and the review
and revisions by all the volunteer lawyers from both CLG and the Association of Women Lawyers (AWL) who came forward
to donate their time and expertise to make this 7th edition of Women and the Law in Alberta a reality.
We have attempted to keep the format similar to the previous edition but have updated legislation where required and
revised and added information where it was appropriate.
After reading this booklet, if you have any questions about your legal rights, please consult a lawyer. To contact a lawyer in
your area, call Lawyer Referral Service which is listed in Legal and Community Resources at the end of the booklet.
Stephanie G. Charlebois (AWL, Board of Directors)
Amna Qureshi ( J.D. Candidate, University of Ottawa)
This booklet is made possible due to the generous funding from the Alberta Law Foundation.
We also want to thank Dustin Smith (Dustin@ReclinerBooks.com) our editor who worked diligently within short timelines
to get this edition ready for the printer, and Shaffin Jiwani (Cascade Printing) whose assistance with cover design and printing
details was invaluable.
We especially owe many thanks to the volunteer lawyers, students and others who helped with the legal research and drafting
for this edition. Thank you:
Sara Bagg Trevor Jones
Yana Banzen Linda McKay-Panos
Jennifer M. Baugh Jean Munn
Geoff Boddy Colleen Nicholls
Keely Cameron Diane Pettie
Suchetna Channan Amna Qureshi
Stephanie G. Charlebois Gwen K. Randall, Q.C.
Teresa Charlebois Rita M. Richardson
Leanne Cherry Erin Runnalls
Nancy Chung Kelsey Sitar
Andrew Culos Lindsey Stewart
Jillian Frank Tara Tiefenbach
Andrea Hankins-Palmer Karin E. Webster
Jackie R. Halpern Kathy Whitburn and her team at the Law Society
Oliver Ho Rani Wong
Sheila M. Hyatt Tera Yates
Marcia L. Johnston, Q.C. US Customs and Border Protection
TABLE OF COnTEnTs
Chapter 1: aCCess to the legal system 7
Legal Help for Women 7
Legal Aid 8
Other Legal Services 10
Going to Court 11
Limitation of Actions 12
Chapter 2: Women as ViCtims of Crime 13
Sexual Assault 13
Battered Women 15
Compensation For Crimes 17
Chapter 3: Women and the Criminal JustiCe system 19
Types of Criminal Offences 19
Types of Penalties 19
Arrest, Booking, and Bail Procedures 19
Appearance by Counsel 20
Pre-Trial and Discovery Procedures 20
The Law of Arrest 20
Basic Criminal Law Principles 22
The Courts 23
Basic Trial Procedures 23
Criminal Record 29
“Young Persons” Records 29
Travelling With a Criminal Record 30
Chapter 4: Women’s rights 33
The Canadian Charter of Rights and Freedoms 33
Your Rights under the Charter 33
The Charter and Aboriginal Peoples 37
Limitations on Charter Rights 38
Remedies for Violation of a Charter Right 38
The Human Rights, Citizenshp And Multiculturalism Act 39
What Is Discrimination? 39
Additional Grounds and Areas to Consider 43
The Legal Rights of Immigrant Women 43
LGBT (Lesbian, Gay, Bisexual, And Transgender) Rights in Canada 46
Chapter 5: Women, money, and property 47
Income Tax 47
Chartered Accountants Referral Service 53
Provincial Court, Civil Division 55
Income Support (Welfare) 57
Widowed Women 62
Guardians and Trustees for Adults 63
Public Trustee 63
Power of Attorney 63
Landlord and Tenant 64
Types of Tenancy Agreements 65
Occupiers’ Liability Act 67
Chapter 6: Women and Work 69
Employment Standards Code 69
Maternity and Parental Leave and Benefits 71
Employment Training 73
Occupational Health and Safety 73
How to Set up Your Own Business 75
Chapter 7: Women and marital status 79
Ending Your Marriage 79
Common-Law Relationships 83
The Family Law Act (Alberta) 83
The Adult Interdependent Relationships Act 83
Matrimonial Property 86
Spousal and Child Support 88
Change of Name 90
Chapter 8: Women and Children 93
Guardianship, Parenting, Custody, and Access 93
Amicus Curiae—the Child’s Lawyer 96
Mediation and Court Service Program 97
Child Abduction 100
Child Abuse 101
Daycare and Out-Of-School Services 103
Seat Belt Legislation 103
Young Persons and the Law 104
The Youth Criminal Justice Act 104
Chapter 9: Women and health 107
Health Care Insurance Plan 107
Patients’ Rights 108
Tissue Transplants 111
Sexually Transmitted Infections 112
Birth Control and Sterilization 112
Birth Technology and Legal Issues 113
Chapter 10: legal and Community resourCes 115
ChApTEr 1: ACCEss TO ThE LEgAL sysTEm
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 field in which you require assistance.
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 recommenda-
tions. 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 chapter ten of this booklet. 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 as-
sistance. You may make an appointment with one or all of the lawyers, but you must tell them that you obtained their names
from Lawyer Referral Service. The lawyer may see you in person or will speak to you by phone to discuss your legal problem
and will not charge anything for the first thirty minutes. After that, the lawyer will charge legal fees so make sure that you time
the interview and make good use of your thirty minutes.
meeting your laWyer
Prepare yourself for your first appointment with a lawyer by making a list of questions. You will want to know how much ex-
perience the lawyer has in handling cases like yours, how much the entire process will cost, 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 ar-
rangement to the lawyer. Keep a copy of this letter for your own records. Any discrepancy in understanding of the terms should
be addressed immediately. If your lawyer does not bill you for her services on a regular basis, and 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 your appointments with your lawyer. Most lawyers will make notes of what is 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 him or her. You have
the right to know what he or 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 your lawyer has the option to 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. Gen-
erally, the Clerk will give you a sample Appointment for Taxation form to use as a guide when filling out your own form. You
Women and the Law 7th Edition, 2011 7
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:
• 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.
• 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 Appoint-
ment 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: (1)
the day on which the lawyer receives the Appointment, (2) the day of the hearing, (3) weekends, or (4) 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
your lawyer will each have a chance to present your 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 ten days of the date when you are notified of the
taxation officer’s decision. The taxation hearing is recorded in the event either party files an appeal.
What if i haVe other Complaints about my laWyer?
If you are unhappy about the manner in which you were treated or other concerns about the way your lawyer handled your
case, 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 your lawyer and give your lawyer an opportunity to respond 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
your 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.
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 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. In order to decide whether you qualify financially, the Legal Aid of-
ficer 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.
8 Women and the Law 7th Edition, 2011
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 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, 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, you should 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 Com-
mittee for your area. Your appeal must be in writing and delivered to the Legal Aid Office which refused you within thirty days
of the date on which you were refused. It is often in your best interest to make a personal presentation to the Regional Com-
mittee. You must make sure to request this in your written appeal so 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 if it appears that information given in your 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: if found guilty then imprisonment and/or a large fine will gener-
ally result. 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 would
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 exclusions, so check with the Legal
Aid Office to find out what is covered.
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.
family laW proJeCt
Starting in 2001, Legal Aid the Family Law Project to deliver family law services through salaried staff lawyers operating out of
Calgary and Edmonton. Any request for family law services in either of these cities is referred to the Family Law Office. 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. There is contact information for these offices in the Legal and Community Resources section.
Women and the Law 7th Edition, 2011 9
is legal aid free?
Services provided by Legal Aid are not free but cost much less than private fees because lawyers who accept Legal Aid cases do
so at discounted rates. When your case is finished, the Society will normally seek repayment. No person is refused Legal Aid
coverage only because he or 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 zero percent interest. If you fail to meet the requirements set by the Society, your coverage
may be refused or cancelled.
does the legal aid system differ for young people?
Young people under eighteen 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 wealthy, Legal Aid will initially refuse the application, and the
youth will then have to ask the Youth Court 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 (Clg)
Is a charitable organization that operates as a poverty law office. CLG provides disadvantaged individuals of Calgary and area
access to justice. Eligibility criteria are based predominantly on income guidelines as determined by the Board of Directors.
Free, confidential legal advice is provided at one of a number of clinics operating throughout the city where appointments are
pre-booked. A lawyer will provide advice on how to handle your problem, what the law means, and how it affects your situa-
tion. In some cases follow-up services, beyond the legal clinic, may be provided. CLG also offers specialized support for people
who need legal help from issues related to homelessness, social benefit issues, and domestic violence. Legal information is also
provided via community presentations and through Dial-A-Law, providing pre-recorded audio education accessible by phone
24 hours a day. (See Legal and Community Resources section for telephone numbers).
edmonton Centre for equal JustiCe (eCeJ)
This is a community-based program that provide legal assistance, representation, and information in areas of civil and admin-
istrative law as well as referrals 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 represen-
tative at appeals. ECEJ offers, by appointment with the Intake Coordintor, free legal services at law clinics every Tuesday and
Wednesday evenings from six to nine p.m.
The clinics operate through 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 the Staff Lawyer and Legal Assistant. Services 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 with access to housing, emergency financial aid, government services, community referrals, and prov-
incial and federally funded social benefits programs. (See Legal and Community Resources section 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
10 Women and the Law 7th Edition, 2011
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.
natiVe Counseling serViCes of alberta
This organization offers information, guidance counseling, and referral services to Native people charged with offences. Courtroom
assistance and speaking on your behalf are also provided.
elizabeth fry soCiety of Calgary
This organization helps 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 offers 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
This organization offers assistance to and programs for men and women, youth, and adults who are at risk of conflict or are
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 twelve to eighteen 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. The 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 integrat-
ing into the community. Assistance is offered 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 Literacy
Program provides free one-on-one tutoring and the Learning Employment Enhancement Program (LEEP) provides employ-
ment training and basic computer training.
going to Court
There are two types of law in Canada. Civil proceedings are those which concern matters between two or more private individu-
als 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
and in addition, provides assistance to victims of abuse in family law matters in provincial family courts. The Criminal Law
Duty Counsel gives advice to people who are about to appear in court. The Duty Counsel may speak in court on your behalf 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 important. 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?
Section 14 of the Canadian Charter of Rights and Freedoms guarantees that any party or witness in any proceeding who does
not understand or speak the language in which the proceedings are conducted, or who is deaf, has the right to the assistance
Women and the Law 7th Edition, 2011 11
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 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 limit the amount of time you have to start legal pro-
ceedings, 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 proceed-
ings expires will depend on the type of problem that you have. For example, you have thirty 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 from when 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
applicable limitation dates. One exception regarding limitations is the “reasonable discoverability” exception. This means that the
limitation period does not begin until the plaintiff (the person bringing the suit) could have reasonably discovered the material
facts upon which their case is based. For example in a sexual abuse case where the plaintiff has suffered memory block over a
number of years she may not be able to appreciate that there is cause of action until the memories of abuse surface.
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 Judgment 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 passes and, if there is no fraud involved, under the statute you will not
be able to obtain assistance 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 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.
12 Women and the Law 7th Edition, 2011
ChApTEr 2: WOmEn As ViCTims OF CrimE
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. To determine whether an assault is sexual the courts
will look at all of the circumstances, including the words and gestures used, such as threatening the victim, whether the motive
was sexual gratification, the nature of the contact, whether the accused tried to hide it, 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. Sexual as-
sault is an assault which is committed in circumstances that are sexual in nature and result in the violation of the sexual integrity
of the victim. 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. It is not necessary for the Crown to prove that vaginal penetration
by a penis occurred. Oral intercourse, anal intercourse, and sexual touching without consent are within the scope of sexual as-
sault offences. In order to prove a sexual assault there needs to be proof of intention to touch, knowing of (or being recklessly
or willfully blind to) a lack of consent, either by words or actions, from the person being touched.
The Criminal Code establishes three categories of sexual assault. The first category is the least serious and the accused may
be charged either by summary conviction (a less serious offence), which has a maximum sentence of eighteen months imprison-
ment or a $2,000 fine or both; or by way of indictment, which has a maximum sentence of ten years imprisonment.
Under the second most serious level of sexual assault, the maximum penalty is fourteen 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 the most serious and involves the wounding, maiming, or disfiguring of the
victim, and carries a maximum sentence of life imprisonment.
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 such as not
disclosing that you are HIV positive or deliberately deceiving someone about it; or a person in authority, such as an employer,
teacher, or parent who uses this authority to obtain consent.
Also, when it comes to sexual assault there is no such thing as implied consent (just because she did not say no does not
mean it is a yes). This also means one cannot presume that they have a person’s consent through their actions. For instance, just
because a woman is dressed in a certain way or acts a certain way may not mean she wants to have sex.
Where the accused is deliberately ignorant as a result of blinding himself to reality, the law will presume knowledge, in
this case knowledge of the nature of the consent, and the accused cannot claim to have been under the mistaken belief that the
The accused must also prove that he or she took reasonable steps to determine whether the victim had been consenting.
This duty to find out if the victim is consenting is especially required when the victim had said no first. It is reckless conduct to
“test the waters” to see if the consent has been “restarted.”
Women and the Law 7th Edition, 2011 13
This “reasonable steps requirement” is tested by asking if a reasonable person who was aware of the circumstances would
have taken further steps before proceeding with the sexual activity. If yes, and the accused has not taken further steps, then the
accused is not entitled to the defence of honest belief in consent. If no (or even maybe) then the accused would not be required
to take further steps and the defence would apply.
Recently the Supreme Court has also ruled that consent which has been given in advance for a sexual act is not valid.
Specifically, if a person consents to a sexual act and then is unconscious while that act is preformed, their initial consent can be
What should i do if i am seXually assaulted?
If you are sexually assaulted, you should call the police or a Sexual Assault Centre as soon as possible. (In Calgary, the sexual
assault centre is called Calgary Communities Against Sexual Abuse or CCASA). A Sexual Assault Centre will 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 survivors 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 had been forced to perform oral sex, do not drink anything or rinse your mouth. 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 the attacker’s DNA. 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 ask the doctor
about a pregnancy test, a “morning after” pill, and tests for HIV and any other possible diseases. Usually the doctor will warn
you of the necessity of these tests, but if the doctor does not, do not hesitate to ask.
The Sexual Assault Response Team is a group of professionals from medical and police services who provide advice and
comprehensive help to victims within seventy-two hours of the abuse or assault. They do most of the assessments of sexual as-
sault victims in Calgary including domestic violence, suicide risk, safety, and appropriate accommodation. They are located in the
Sheldon M. Chumir Health Centre in Calgary but can meet the survivor at another hospital if that is necessary.
The survivor can contact CCASA even after seventy-two hours has elapsed which offers a twenty-four hour crisis service,
short term crisis counselling, and information nights, an anonymous drop-in for survivors, those assisting survivors, and support
workers. CCASA also offers support services to male victims of sexual assault. See the Legal and Community Resources section
for more contact information.
What happens if i go to Court?
If the attacker is caught and charged, you will be the main witness in the 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 victim consented to the act. The accused’s
lawyer will try to convince the court that you did give consent by, trying among other things to damage your credibility. The
lawyer may only question you about your past sexual activities if the requirements set out above are met.
You might feel that it is you, and not the accused, who is on trial. This is a common feeling among victims of sexual as-
sault. The accused is not required to testify. 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.
There are some ways in which your identity can be hidden during the trial such as not allowing the media to publish your
name, not allowing the public to be present during the hearings, and going by a different name (usually the victim’s initials)
during the hearing and in the court documents.
If any physical evidence, such as DNA or medical records of injuries, was collected it is also used at the trial. The lawyers from
each side can also rely on evidence from the internet such as instant messenger chat logs or facebook to show, for instance, that
there was an ongoing consensual sexual relationship or that the attacker had threatened or apologized to the victim for the assault.
14 Women and the Law 7th Edition, 2011
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 start
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.
The standard of proof for civil cases is different from that in criminal cases which means that even if the attacked is found not
guilty in the criminal trial he/she may still be found liable for damages in a civil case.
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 complete a third party report, if you wish one. This is a report to the
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, rather than a crime of sex. 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, a relative, 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 leaves its victims emotionally and physically scarred. Emotional help is often required
for 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.
A man who beats a woman, whether it is his wife, his girlfriend, his common-law partner, or family member 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, this right to be protected can only be enforced if the 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.
Women and the Law 7th Edition, 2011 15
Where Can a battered Woman get help?
If you are in immediate danger, call the police by using the emergency number (911) in order to preserve your safety and that
of your children. 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) and could
arrest him and take him to jail right away.
In the past, in cases of domestic violence, the choice of whether criminal charges should be laid was once to be the respon-
sibility of the individual woman. This is no longer the case. Today the police 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 counsellors who will attend after the
police have made a preliminary investigation. It is up to 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 twenty-one 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 ac-
commodation (see Legal and Community Resources section).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 can 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 and you should take photographs of any damage to yourself or your property,
seek medical attention for any cuts etc., and have the doctor record 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 take applications for an EPO twenty-four 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 nine working days from the day the
order was first granted. The documents are filed at the Court of Queen’s Bench, which automatically forwards the documents
and a transcript of the hearing to the Family Law Office. A lawyer will contact you by letter, as soon as possible, to advise you
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.
Alternatively, you may contact the Family Law Office to discuss your EPO. The lawyer also provides information about com-
munity services available, discusses safety issues, and ensures your Order has been served. If the EPO is confirmed by the Court
of Queen’s Bench, the EPO will remain in place for up to one year. If there is a breach of the Order by your partner, the lawyer
will attend court 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 is different from an EPO because it 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 on the accused 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 by allowing your partner to have contact
16 Women and the Law 7th Edition, 2011
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. That 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, ninety 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.
Also a “no contact” Order can be imposed by the police after an assault charge has been laid. A “no contact” Order is usu-
ally a condition of the accused’s release: in other words, he will be charged and released but only on the condition that he has
no 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 absolute 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 social assistance (welfare). Funds will be provided for food, clothing, and shelter, as well as training if you have insufficient
job skills. You 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 against you for taking them from him (the consent of the Attorney General would be needed before the
charge could be laid). The only defence to these charges is that the children were removed from a dangerous situation. 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.
Elder abuse can take on many forms, including physical, financial, verbal, and psychological abuse and protection orders are also
available for this kind of abuse. The Kerby Rotary House in Calgary, located at 1133, 7 Avenue SW, offers a supportive shelter
for abused seniors. Call 403-705-3250. See the Legal and Community Resources for more contact information in your area.
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. In order to qualify 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. A guardian, or someone acting on the victim’s behalf, may apply if the victim
is a minor or significantly incapacitated. You are not eligible for benefits if you are charged and convicted of an offence as a result
of the incident, if you are a victim of motor vehicle or property offenses such as impaired driving or break and entry, if you have
an extensive criminal history or if you 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 the 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. You should not wait for a conviction or for charges to be laid. Additional time to apply
Women and the Law 7th Edition, 2011 17
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 through local victim service programs associated with police services or through the Government
of Alberta website (See Legal and Community Resources section). 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 to six months but this can vary greatly.
Can i appeal the deCision?
You can appeal the decision to Criminal Injuries Review Board.
18 Women and the Law 7th Edition, 2011
ChApTEr 3: WOmEn And ThE CriminAL JusTiCE
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 way of summary proceedings or by indictable offence. On a first offence, the prosecutor normally opts to proceed by way of
summary proceedings and may choose to proceed by indictable offence for a second or subsequent instance. The prosecutor may
also choose to proceed by way of indictable offence on a first offence if the circumstances are particularly serious.
types of penalties
In the Criminal Code, summary offences are generally punishable upon conviction by a maximum $5,000 fine or six months’
imprisonment, or both. The maximum penalty for most minor indictable offences, such as theft or possession of stolen property
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 offence of skipping bail. More serious indictable offences bear maximum jail terms of five, seven,
ten, fourteen years, or life. There is no restriction on the amount of the fine that can be imposed as sentence for most indictable
Under the Controlled Drugs and Substances Act, a first conviction for a summary offence carries a maximum penalty of a fine
of $1,000 or imprisonment for six months, or both. A subsequent conviction for a summary offence carries a maximum penalty
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. The Controlled Drugs and Substances Act states that offences such as importing a narcotic (e.g., cocaine, heroin, or marijuana)
carry a maximum prison 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 $1,000. For a
second offence of impaired driving, whether summary or indictable, there is an automatic jail term of not less than thirty days.
For any subsequent offences, there is an automatic imprisonment for a term of not less than one hundred and 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 eighteen 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 per-
son’s arrest or unless the officer witnesses that person committing the offence. In contrast, in the case of indictable offences, an
Women and the Law 7th Edition, 2011 19
officer can arrest a person who, on reasonable and probable grounds, is believed to have committed or is about to commit an
The Criminal Code obliges a police officer not to arrest a person for a summary offence, or an offence which may be
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 rep-
etition 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 essentially the same for summary and indictable offences. However, the usual procedure of an ar-
rest for an indictable offence or an offence which may be summary or indictable is fingerprinting and photographing pursuant
to the Identification of Criminals Act.
Often, after being arrested, a person will be given paperwork by the police instructing them to return to the police station
on a different day to have their photograph and fingerprints taken. It is very important that this appointment is not missed
because missing the appointment for fingerprinting will result in an additional criminal charge.
A person accused of a summary offence is usually released on her own recognizance. This means that the Judge is allowing
the accused person to go back to their normal life and trusting them to return to court on the set court date on their own. An
accused person charged with an indictable offence, who has been denied bail, is entitled to automatic review of bail after he/she
has been in custody for ninety days. In the case of a summary offence, the accused is entitled to an automatic review of bail if
the trial has not proceeded within thirty days of the detention.
appearanCe by Counsel
Another important distinction between summary and indictable offences is that an accused does not have to appear in person
in a summary case. He or she may appear through a 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 he or she signs a designation of counsel allowing
counsel to appear on behalf of the accused.
pre-trial and disCoVery proCedures
In summary cases, there is no right to have a preliminary hearing (for more about preliminary hearings see section on Basic Trial
Procedures.) Defence usually obtains information before trial by obtaining disclosure from the Crown Prosecutor. There is a
provision in the Criminal Code for making a formal application for disclosure, although it is rarely used. 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 posses-
sion 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 he/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 him or her off with a warning or issue an appearance
notice or summons for the accused to appear in court at a specified date and time. The police do not make an arrest in every case.
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.
20 Women and the Law 7th Edition, 2011
An officer can arrest a person he or she witnesses 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 witness 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
is 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 law-
ful 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 a person or the property of a 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 merely on 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
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
suspect of the reason for the arrest or show the suspect the warrant if there is one, and, depending on the circumstances, the police
may or may not place handcuffs on the arrested person. Additionally, the police are required by section 10(b) of the Charter to
inform the arrested person that they have the right to contact a lawyer without delay and that free lawyers are available to give
advice to the arrested person. If the arrested person wants to speak with a free lawyer, or any other lawyer, the police are required
to give the person access to a telephone and the 1-800 number they can call for free legal advice.
The police are also required to caution all arrested persons that they do not have to speak to the police or provide the police
with any information, they must also tell arrested persons that anything they do say to the police, if they chooses to speak to
Women and the Law 7th Edition, 2011 21
them, could be used against them later at their trial. This means that the Crown Attorney may call police witnesses at her trial
who will tell the trial judge about any interviews they conducted with the arrested person and any video or audiotapes made of
the interviews may be played for the trial judge to watch or listen to. The content of these interviews may provide evidence that
could lead the judge (or jury) to find her guilty at her trial. Additionally, if the arrested person provides any other information
to the police upon her arrest that leads to any evidence being found, this evidence could be entered into her trial by Crown and
may be used by the judge (or jury) to find her guilty.
In Canada, arrested persons do not have the right to have a lawyer present when they are interviewed by the police. However,
because any evidence provided by an arrested person in an interview with police can only be used against them at their trial,
most lawyers will advise arrested people to only provide the police with their name and their date of birth. Most lawyers will
advise arrested persons to politely refuse to answer any other questions posed by the police (including questions about where
they live, where they work, the members of their family, etc.).
Arrested persons can simply tell the police “My name is: and my date of birth is: and, on the advice of my lawyer,
I will not be providing you with any other information or answering any other questions.” This does not mean that the police
will stop asking questions of the arrested person and they may attempt to persuade the arrested person to speak, saying that this
is their chance to tell their side of the story and that the police simply want to get to the bottom of what happened. However,
the arrested person must continue to be polite but firm, either remaining completely silent or simply telling the police they have
no comment. Some arrested people find it helpful to simply place their head down and ignore the police if they continue to ask
There is no obligation on an arrested person to answer the police’s questions (except for providing their legal name and
date of birth). Refusing to answer any other questions by the police cannot ever be held against an arrested person in Court
or anywhere else. In Canada, everyone has the right to remain silent if they are arrested for a criminal offence. It is important
to remember that any statements made by an arrested person in an interview can only be used at trial by the Crown Attorney
to try and convict the arrested person. Due to the rules of evidence in Canada, an arrested person’s lawyer can never use their
client’s statement at trial to try and help acquit the arrested person. Therefore, it is better for an arrested person to exercise their
right to silence with the police—their time to tell their side of the story will be in their lawyer’s office, not in a police station.
basiC Criminal laW prinCiples
Generally, there are two elements to every offence.
1. “Actus reus”—the guilty act. The Crown must prove a voluntary act was committed by the accused. It can
be classified as the doing or action part of the offence. For instance, this would be the theft of property,
or the application of force on someone.
2. “Mens rea”—the guilty mind or intent. Did the accused intend that act to occur? Or, did the accused
know that he or she did not have the consent of the victim before committing an assault?
In a murder case, an individual could be charged with negligence instead of murder if they did not have the intent to murder.
For instance, in the case of mental incapacity, or insanity as it is known, the person may be found not guilty because they are
not able to form the mens rae for the crime. Also 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 (see list below). Where mens rea is required it consists of two parts: the awareness
of the act, and the intent or knowledge. However, the accused does not have to know that it is an offence. It is enough that the
act was intentional.
Offences may be divided into three categories for purposes of determining the mental element required:
• “True crimes” or full mens rea offences: require a positive state of mind which the prosecutor must prove.
Such offences will usually contain such words as intent, knowledge, or recklessness. These include such
crimes as murder or sexual assault for which the penalties are greater and there is a greater stigma placed
on the accused.
• Strict liability offences: the prosecutor must prove that the accused actually committed the act but the
accused can then avoid liability by showing that he or she took all reasonable steps to avoid committing
an offence. This is otherwise known as the due diligence defence.
• Absolute liability offences: the prosecutor only has to prove that the accused committed the act. There are
no defences available to the accused and it is no defence to show that she or he took all reasonable steps
to avoid committing the offence. Very few offences fall into this category but examples would include
speeding or going through a red light while driving.
22 Women and the Law 7th Edition, 2011
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 most 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 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 de-
termine how an individual elects to be tried if she is accused of an indictable offence. She can elect to have her trial heard by a
Judge of the Provincial Court, a Judge of the Court of Queen’s Bench, or by a Judge and jury of the Court of 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 the Court of Queen’s Bench are referred to as “My Lord,” or “Sir,” and “My Lady,” or “Madam.”
If the accused is sentenced to a period of incarceration, she will be held at a Remand Centre during the thirty-day right to
appeal period. Both the person convicted of the crime and the Crown have the right to appeal the sentence or the conviction.
The Attorney General will determine other appeal applications beyond the thirty-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 appeals are made to the
Court of Appeal of Alberta.
alberta Court of appeal
The Alberta Court of Appeal hears appeals of trials that have taken place in the lower courts. Depending on whether a person
has been convicted of a summary offence or an indictable offence, and depending on the issue they are appealing, they may not
have an automatic right to appeal their conviction to the Alberta Court of Appeal. If there is no automatic right of appeal, the
appellant must submit an argument explaining why their case is important enough to be heard by the Court. The Court then
decides whether or not to allow the appeal. A panel of three judges usually hears the cases at the Alberta Court of Appeal.
the supreme Court of Canada
The Supreme Court of Canada is the highest appeal court in the country. The only cases that are heard by the Supreme Court
of Canada are appeals from the Appellate Divisions of the various provinces. In other words, an Alberta case would usually be
heard by the Alberta Court of Appeal before it can be appealed to the Supreme Court of Canada.
In most cases, there is no automatic right to appeal a case to the Supreme Court of Canada. The Court will review the case
and decide whether or not to hear the appeal. However, there is an automatic right to appeal a criminal case to the Supreme
Court of Canada in certain circumstances. For instance, if one of the judges of the Alberta Court of Appeal disagreed about how
the law should be interpreted, the Supreme Court of Canada will hear the appeal. The same applies if an accused was acquitted
at the original trial but was convicted on appeal. The Supreme Court of Canada is composed of a Chief Justice and eight other
judges and is located in Ottawa, Ontario.
basiC trial proCedures
A trial involves complicated rules of evidence and procedure. This section only touches on the most basic procedural points.
Criminal trials are very complicated and the consequences of a criminal conviction can be very serious, especially if a person
does not have Canadian citizenship. Therefore, accused persons are strongly encouraged to seek legal advice for their particular
situation and to obtain their own lawyer who can represent them at their trial.
Women and the Law 7th Edition, 2011 23
What Court Will hear my trial?
If an accused person is charged with a summary conviction offence, they will have their trial in the Provincial Court of Alberta.
If the person is charged with an indictable offence, they can choose how they wish for their trial to proceed—this is called an
People charged with indictable offences have the right to a preliminary inquiry, which is held in Provincial Court and where
the Crown calls some of their witnesses and allows the defence the opportunity to cross-examine them. A person is not con-
victed or acquitted at the end of a preliminary inquiry—rather, the Judge simply decides whether or not the Crown has enough
evidence to proceed to a trial against the accused. The test for whether or not there is enough evidence is very easy to meet and
the vast majority of accused persons who have a preliminary inquiry have their matter proceed to a trial. If a trial is ordered to
proceed after a preliminary inquiry, then it is held in the Court of Queen’s Bench and the accused person gets to choose if he
or she wants their case decided by a Judge alone or by a Judge and Jury.
However, accused persons charged with indictable offences also have the option to not have a preliminary inquiry and
instead go directly to trial. If they choose not to have a preliminary inquiry (called “waiving” the preliminary inquiry), then they
may have their trial in Provincial Court or they may still choose to have their trial in the Court of Queen’s Bench with a Judge
only, or with a Judge and Jury. The decision of whether to have a preliminary inquiry, whether to have a Provincial Court trial,
or whether to have a trial in Queen’s Bench with a Judge or Judge and Jury is an important decision and one that should be
made in consultation with a lawyer.
The trial begins with the Prosecutor calling evidence, usually in the form of witnesses. Each witness must be sworn in or af-
firmed. 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 actually 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 phrased in a way
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.” This rule states that a witness cannot be asked what he or she was told by a third person
outside of court. Confessions by the accused, however, is 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 and weapons,
called “real evidence.” A third kind of evidence is “certificate evidence,” which is common in, for example, 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 cross-
examination, the questions can be leading (meaning that the witness will generally be able to answer the question by simply
saying “yes” or “no”), and almost any question that tests the accuracy or the credibility of a witness is allowed, as long as it is
relevant and not vexatious or repetitive.
After 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 someone is found guilty, they are convicted; if someone is
found not guilty, they are acquitted. In order to convict an accused person, the Judge must be satisfied beyond a reasonable doubt
that the Crown proved that the accused was guilty as charged. If the Judge acquits an accused, she is then free to go. This means
she does not have a criminal record and that any bail conditions she may have been on since her arrest are no longer in force.
If the Judge convicts the accused, then the matter will proceed to sentencing. This may happen on the same day a person is
convicted or it may happen at a later date. Sometimes, the Judge wants more information about the convicted person and may
order that they meet with a psychologist or a probation officer, who will provide reports to the Judge about the convicted person.
The Judge ultimately decides on the appropriate sentence after hearing from each side (the Crown and the defence) as to what
they feel is an appropriate sentence. While the Judge must listen to and consider what the lawyers say, the ultimate decision as
to what sentence should be imposed is the Judge’s decision alone.
24 Women and the Law 7th Edition, 2011
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 offence, there are circumstances which either prevented her from forming an intention to commit the offence or
which excuse her from responsibility 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 in self defence or to defend an innocent bystander.
A person may claim a defence of duress where she commits an offence under threat of death or serious injury. 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.
Also, it is not necessary for the person making the threat to be present or in a position to immediately carry out the threats.
For instance, if someone tells you to go to another country and commit a crime there and threatens that if you don’t they will
harm your family and then you commit the crime, then this defence may be available to you. However, the crime committed
needs to be at most proportional to the threat made. In other words the threat(s) must be very serious in nature.
In order for the defence to be valid, there must also be no other safe avenue of escape for the person committing the of-
fence. In other words, an accused person cannot rely on the defence of duress if he or she has an opportunity to get out of the
situation of duress safely. The accused must raise the defence and provide sufficient evidence to show that it was demonstrably
impossible to comply with the law.
Finally, this defence is not available for all offences. Excluded offences include murder, attempted murder, robbery, arson,
forcible abduction, and sexual assault.
mistake of faCt
This defence arises from the requirement that the Crown must prove beyond a reasonable doubt that the accused not only com-
mitted the guilty act, but also 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, Bill tells Ann that Charlie has taken his bicycle, and asks her 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 from Charlie and returns it to Bill. If the bike in
fact belongs to Charlie, Ann may have the defence of mistake of fact.
mistake of laW
Ignorance of the law is no excuse. We cannot avoid responsibility 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.
However, there have been cases where the courts have decided that it would be unfair to convict the accused where she
was not properly informed of the offence. The Courts rely on the specific facts of each case when deciding whether mistake of
law is a valid defence.
not Criminally responsible on aCCount of mental disorder
The issue of an accused being not criminally responsible on account of mental disorder may be raised by the accused or by the
prosecution. The Court must be convinced that, at the time of the offence, the accused was unable to understand the “nature and
quality” of her actions, or that she did not know that what she was doing was wrong due to her mental disorder.
A hearing is conducted by a Review Board to decide whether the accused is fit to stand trial. The Judge may send her for
observation for up to thirty days (sixty in some circumstances). If she is found unfit to stand trial, or if she is acquitted at trial due
to her mental disorder, the Judge will order her kept in custody until the Lieutenant Governor makes an order directing where
she will be kept, or whether she will be released. She may be released with or without conditions. When considering whether
to release the accused, the Lieutenant Governor must consider the best interests of the accused and the public.
Women and the Law 7th Edition, 2011 25
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 herself from death or serious injury.
The belief of the accused that she was in danger must have been reasonable at the time of the offence. In coming to that
conclusion, 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 committed 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 tried to avoid further conflict and 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 may be justified in using force to repel Bill’s attack.
A person may also use no more force than necessary to prevent someone from taking her property, or to prevent someone
from breaking into her home. However, it is never permissible to kill or cause serious bodily injury in preventing these kinds of
things unless it is a measure of self-defence.
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 has been accepted as a defence for committing an offence, but this defence will only succeed under certain cir-
cumstances. If a person is so intoxicated that she is incapable of forming the necessary specific intention to commit the crime,
then the person cannot be found guilty. However, a person may still be found guilty of a lesser offence requiring a less specified
degree of intention. In the case of murder, drunkenness may reduce the offence from murder to manslaughter.
Provocation does not justify, and is not a defence to, an assault although it may lessen the sentence. Provocation includes blows,
words, or gestures. Provocation is a limited defence to a charge of murder. In other words, if an accused can show that she was
provoked prior to committing murder and that she acted in the heat of passion, the charge may be reduced to manslaughter.
The provocation must have been enough to cause an ordinary person to lose self-control.
battered Woman’s defenCe
Depending on the history of the relationship between a woman and her partner, she may be able to raise the battered woman’s
defence. This defence applies if there has been repeated violence in the relationship and, at the time of the offence, the accused
woman feared for her life or felt that she would suffer serious bodily harm. This is different from regular self-defence where the
accused woman must show that she was in immediate danger at the time of the offence.
However, the accused woman must still show that her belief that she was in danger was reasonable at the time, and she
must have used reasonable force in defending herself.
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 can 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.
26 Women and the Law 7th Edition, 2011
The probation officer looks at the offender’s background, previous convictions, family life, work record, current employment,
any treatment or counseling 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 pros-
ecutor. If the defendant disputes the accuracy of the statements in the report, the Crown has the obligation 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 (promise to appear before the court on a specified day) 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, and any other information
that the judge should consider before deciding on the appropriate sentence. The prosecutor provides information on the accused’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 and Conditional disCharges
A discharge means that the accused person pled or was found guilty but is deemed not to be convicted. A discharge can only be
given if there is no minimum punishment for the offence and the maximum punishment is less than fourteen years imprison-
ment. The discharge must be in the best interests of the accused and must not be contrary to the public interest. A discharge
can either be absolute, or can be subject to the conditions set out in a probation order.
An accused who is granted a discharge is considered not to have been convicted of the offence. However, both the accused
and the prosecution can still appeal the decision. Although a discharge becomes part of the accused’s criminal record, the record
of the discharge will be removed one year after an absolute discharge, and three years after a conditional discharge.
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 allows the individual to serve her sentence in the community within certain conditions. All probation
orders require the accused to keep the peace and be of good behavior, to report to the courts when required to do so, and to
notify her probation officer if she changes her name, address, or employment.
Common additional conditions are the requirement to report to a probation officer, to refrain from the use of alcohol and
drugs, to refrain from associating with certain individuals, or to perform community service. The longest period of probation is
three years. Breach of probation can be treated either as an indictable offence or as a summary offence. The individual can be
returned to court and given a further sentence on the original crime if she does not comply with the conditions of her probation.
fines and fine option
In many cases, a fine is given as a penalty for committing an offence. The Criminal Code sets out the maximum fine that can
be imposed for each offence, but the judge can decide on the actual fine amount. 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 $8.80 per hour, to
be raised to $9.40 per hour on September 1, 2011. For example, for a $600.00 fine, the person would have to work about sixty-
eight 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.
The Criminal Code indicates maximum and minimum sentences for a wide variety of offences. For example, robbery has a
maximum sentence of life in prison while assault causing bodily harm has a maximum of ten years. All summary offences have
a maximum sentence of six months in jail or a $5,000 fine or both. As well, the court may order that the sentences, if there are
more than one, be served concurrently or consecutively.
Women and the Law 7th Edition, 2011 27
Concurrent Sentences—All sentences begin on the same date and the total jail time is concluded when the longest of the
concurrent sentences is complete. Related offences that occur the same day or week are usually sentenced concurrently. If the
person is already serving a sentence, or if she is dealing with several charges at the same time, she is likely to get concurrent time.
Consecutive Sentences—These sentences are served one after the other and are usually as a result of totally separate of-
fences. For example: 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
sentence in the community. There are three pre-requisites for a conditional sentence: (1) the sentence of imprisonment 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 met, the judge may consider a
If the judge sentences someone to a term of two years in jail less a day, the sentence will be served in a provincial institu-
tion, while two years or more are served in federal penitentiaries.
Anyone who receives a sentence of two years less a day is considered 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 SENTENCE—This type of sentence allows the person to serve their time intermittently, often on weekends.
This usually takes place under special circumstances, as long as the offence was not a serious or violent offence. For example, an
intermittent sentence would allow a single mother to keep her job and care for her children, while serving her sentence at the
FINE—A judge can sentence a person by handing down a fine. The judge can also sentence the accused to time in jail if the
fine is not paid. The accused may end up serving some time in custody until the fine is paid.
TEMPORARY ABSENCES (TAs)—Provincial inmates are eligible for the temporary absence program after they have served
one sixth of their sentence. 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 allow offenders to attend treatment centres, to attend school, or to maintain employment.
PAROLE—Provincial offenders are eligible for release (parole) once they have served two thirds of their sentence, as long as
they are of good behaviour and obey the institution rules. Parole is a form of conditional release and the offender must obey
certain conditions until her parole period is over.
TEMPORARY ABSENCES (TAs)—There are two types of TAs; escorted TAs (ETAs) and unescorted TAs (UTAs). Offenders
can apply for ETAs at any time during their sentence. If an offender is serving a sentence of three years or more, she may apply
for a UTA after she has served one sixth of her sentence. If she is serving a sentence of two to three years, she may apply for
a UTA after she has served six months. Offenders serving life sentences are eligible to apply for UTAs three years before their
full parole eligibility date. 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.
DAY PAROLE—When granted day parole, inmates are permitted to participate in community-based activities during the day-
time but must return to an institution or half-way house every night, unless otherwise authorized by the Parole Board. Inmates
are usually eligible for day parole six months prior to their full parole eligibility. However, if an offender is serving a sentence of
two to three years, she may apply for day parole after serving six months of her sentence. Day parole will be granted only when
the Parole Board considers that it will aid the inmate’s reform and rehabilitation without posing a risk to society. The Parole
Board will set the conditions that the inmate must follow while on day parole.
FULL PAROLE—Full parole allows the inmate to remain at large until the end of sentence, unless the release has been sus-
28 Women and the Law 7th Edition, 2011
pended, terminated, or revoked. An offender who is released on full parole must report to a parole supervisor on a regular basis
and must inform her supervisor if her personal circumstances change: for example, if she changes jobs.
An inmate is generally eligible for full parole after serving one third of her sentence. Full parole is usually granted to those
who do not constitute a risk to the public, who have benefited from imprisonment, and whose reform and rehabilitation will
be aided by granting full parole.
STATUTORY RELEASE—Offenders are usually entitled to be released from imprisonment after they have served two thirds
of their sentence. However, the Parole Board of Canada has the authority to detain the offender until she has served her full
sentence, or to place conditions on her release. This will occur if it is believed that the offender is likely to:
• commit another offence that will cause death or serious harm to another person;
• commit a sexual offence involving a child;
• commit a serious drug offence before the end of her sentence.
If an offender breaches the conditions of her release, commits a crime while on release, or becomes a risk to the public, the
Board has the authority to revoke her release and detain her until the end of her sentence.
Individuals who have been found not guilty or who have had their cases dismissed will not have a criminal record. However, if
a person is convicted of a criminal offence and sentenced to probation, a fine or a prison sentence, then the person will have a
criminal record. If a person is given a fine, a prison sentence, or probation as a result of a suspended sentence, they will always
have a criminal record unless they apply for, and are given, a pardon. If a person is given probation as a result of a conditional
discharge, then the person’s criminal record will get an automatic pardon (without applying for one) three years after they finish
If you have been convicted of an offence under the Criminal Code or any other federal legislation, you may make an applica-
tion to the National Parole Board for a pardon in respect of that offence. You do not need a lawyer or representative to obtain
a pardon. An application form and instructions are available on the National Parole Board’s website:
The Board must investigate your circumstances since the date of your conviction. You must not have reoffended and must
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 were convicted of a personal injury offence and received a sentence of two years or more, or if you were convicted
of sexual offence involving a child (indictable conviction), you must wait ten years before applying for a pardon.
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 auto-
matically 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.
It should be noted that the United States of America does not recognize pardons or conditional discharges. Therefore, even if
you receive a pardon or if your conditional discharge has automatically been removed from your record, the American authorities
will always consider you to have a criminal record (see Travelling with a Criminal Record section below).
“young persons” reCords
If you are a “young person” (under eighteen), and convicted of an offence under the Youth Criminal Justice Act, a finding of guilt
may remain on your record after you turn eighteen. The management of Youth Records is very complicated and it is recommended
Women and the Law 7th Edition, 2011 29
that you seek the advice of a lawyer if you are concerned that an entry on your Youth Record may be visible to an employer or
to some other individual or group.
Although there are many exceptions, generally juvenile record entries resulting from summary conviction criminal charges
will stay with you for no more than three years after the completion of the sentence imposed against you. If your record entry
resulted from an indictable criminal charge, generally your record will stay with you for no more than five years after you com-
plete the sentence imposed. However, the length of time your youth record remains unsealed is always calculated from the most
recent conviction and, if that most recent conviction occurred within the period that a previous conviction was still visible, then
that previous conviction will also remain visible. Also, if you are convicted as an adult of a criminal offence within the period of
time your youth record entry is visible, then your youth record will be unsealed forever.
If your youth record becomes sealed (with some important exceptions), generally no employment application form should
ask you any questions that would require 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—if this happens to you, seek
advice from a lawyer immediately.
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, you should contact the Consulate of the country you wish to visit.
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 before it. The United States does not have to recognize a pardon granted
in Canada. Any conviction for a drug offence under the Controlled Drugs and Substances Act, will result in you being denied
entry and this includes “in-transit” stopovers. The computerized record at the US ports also mean that even if you have entered
the United States without any problem in the past, you could run into difficulty if your record shows a criminal conviction or a
previous denial of entry. Attempting to gain entry without a waiver could result in several weeks of detention.
Absolute discharges and convictions in Youth Court might not be classified as “criminal offences” and normally will not
bar admission to the US. A person receiving a conditional discharge will probably be considered to have a criminal record. US
immigration policy is subject to change, especially after September 11, 2001.
If you have a criminal record, you should contact one of the US Customs and Border Protection ports of entry by telephone
or contact the Embassy of the United States of America or one of its consulates well before you leave. If you are ineligible to
enter the United States, you may apply for a waiver of ineligibility. This will involve completing Form I-192, “Advance Permis-
sion to Enter the United States as a Non-Immigrant.” This form is available on US government websites. There is a fee and it
may take several months to process your application.
Again, if you are not sure whether you would be granted admission to the US, it may be helpful to contact a border crossing
to get information on your particular case as soon as possible before your planned departure date. The phone number for US
Customs and Border Protection at the Edmonton International Airport is 780-890-4486. The number for US Immigration at
the Calgary International Airport is 403-221-1730. You can also call the US 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
US Immigration Officers have the discretion to admit people to the US who would not automatically be admissible. This discre-
tion is exercised based on an interview with the person either prior to, or at the time of, attempting to enter the US. 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.
30 Women and the Law 7th Edition, 2011
Parole admission will only be granted in rare circumstances. It must also be emphasized that parole admission is discretionary
and there is no guarantee that a person admitted one time would be permitted to enter the US on a later occasion.
The waiver process is similar to the process of applying for a pardon under the Criminal Records Act. The applicant must send
completed forms, fingerprint samples, a photo, and a copy of their criminal record to US Customs and Border Protection. All
of the material necessary to apply for a waiver can be picked up at any border crossing (including the Calgary or Edmonton
The successful applicant will be notified of the waiver following an investigation by the US 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. Being convicted of another crime will cause the regular border crossing card to be revoked.
Women and the Law 7th Edition, 2011 31
32 Women and the Law 7th Edition, 2011
ChApTEr 4: WOmEn’s righTs
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 of Canadian citizens.
These rights and freedoms are guaranteed because the Charter is entrenched meaning that 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 and 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 gov-
ernments 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:
• Federal or provincial legislation that violates a Charter right;
• Federal or provincial government policy whose provisions or effects violate a Charter right;
• Federal or provincial government practice which has features or an effect that violates a Charter right;
• 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
includes choosing non-belief. According to the courts, the government should not pass any laws that have the effect of pressur-
ing individuals to choose any specific religion or to observe its customs.
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 laws we have against hate speech, 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.
These rights mean we may meet with whomever we choose in order 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 meetings to plan the commission of crimes.
Women and the Law 7th Edition, 2011 33
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.
time period betWeen eleCtions
Section 4 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.
Section 5 ensures that the federal Parliament and the provincial Legislatures must sit at least once every twelve 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
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
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.
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 sections 9 through 14. These sections deal mainly with the protection of the individual when he or 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 overcome the individual. Section 7 protects the right to
life, liberty, and personal security. 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 the accused 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.
Section 7 is of particular interest to women, for it is under this section that abortion laws have been challenged. The Su-
preme Court of Canada used section 7 in striking down the criminal abortion law on the basis that the administrative barriers
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
34 Women and the Law 7th Edition, 2011
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 would not be reasonable if
the police were 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 they would have to prove they had reason-
able 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. 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. However, 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 that apply upon arrest or detention. This section guarantees you several rights:
1. 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.
2. You have the right to contact a lawyer without delay, and the police must inform you of that right. 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
3. 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 have spoken to counsel. There are some
exceptions however, for example, if you are driving a motor vehicle and are 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.
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.
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 be 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 when and where
the alleged offence occurred.
You have the right to be tried within a reasonable time from the date you are charged with an 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.
Women and the Law 7th Edition, 2011 35
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 of-
fence 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
be 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
do not 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 a 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 (freed or cleared) 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 punish-
ment. The courts have recognized that the meaning of “cruel and unusual” changes depending on the circumstances in each case.
For instance, sentencing someone to life imprisonment for driving five km/h over the speed limit would be 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-inCrimination
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.”
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 proceed-
ings before a tribunal.
Section 15 should be of particular interest to women because it deals with “equality rights.” This 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.
36 Women and the Law 7th Edition, 2011
This section does not protect people from discrimination in the private sector. In Alberta, the Alberta Human Rights Act
provides this protection. See Human Rights, Citizenship and Multiculturalism Act section for more information.
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 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).
Sections 16 through 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 through 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 un-
derstood 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.
Section 26 recognizes that there are other rights that exist, outside the Charter, at common law or in other human rights stat-
utes. These other rights are to co-exist with the Charter unless the other rights themselves violate the Charter, in which case
the Charter will override it.
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 state that there are 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.
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 of the Charter
This section states that the rights set out in the Charter are not to be interpreted in a way that would take away, diminish, or
reduce Aboriginal, Treaty, or other rights and freedoms pertaining to Aboriginal people. The courts treat this section as a simple
shield of protection for Aboriginal Peoples’ rights. This section does not create new rights.
Women and the Law 7th Edition, 2011 37
seCtion 35 of the Constitution aCt, 1982
This section is found in the Constitution Act, 1982, and falls outside the Charter. It affirms and recognizes the existing Aboriginal
and Treaty rights of the Aboriginal Peoples of Canada, which include the Indian, Inuit and Métis. 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 such rights are guaranteed equally to male and female persons.
What is meant by a status indian and Who Can haVe status?
An individual recognized by the federal government as being registered under the Indian Act is referred to as a Registered Indian
(commonly referred to as a Status Indian). Status Indians are entitled to a wide range of programs and services offered by federal
agencies and provincial governments. What you are eligible for will depend largely on where you live.
Over the years there have been many rules for deciding who is eligible for registration as a Status Indian. Important changes
were made to the Act in June 1985 when Parliament passed Bill C-31, An Act to Amend the Indian Act, to bring it in line with
the Canadian Charter of Rights and Freedoms (The Charter), and again in 2011 with the coming into force of Bill C-3: Gender
Equity in Indian Registration Act.
Bill C-3 amends provisions of the Indian Act that were found to be unconstitutional in the case of McIvor v. Canada. The
bringing into force of this Bill will ensure that eligible grandchildren of women who lost status as a result of marrying non-
Indian men will become entitled to registration (Indian Status). As a result, approximately 45,000 people will become newly
entitled to registration.
Department of Aboriginal Affairs and Northern Development Canada (AANDC) has developed an improved service for
Bill C-3 applicants, and registration forms are available on the AANDC website (www.ainc-inac.gc.ca), from the AANDC
Alberta Region Head Office in Edmonton or the AANDC Southern Alberta Field Services Office in Tsuu T’ina near Calgary,
from Service Canada Centres, and from the AANDC Call Centre (1-800-567-9604).
The Minister of AANDC also serves as the Federal Interlocutor for Métis and Non-Status Indians. The Federal Interlocutor
helps to find practical ways to improve federal programs and services for Métis, Non-Status Indians and urban Aboriginal people.
For information on topics such as: eligibility for Indian Status; applications forms for Indian Status; Métis card; band em-
ployee benefits; benefits information, non-insured health benefits, First Nations and Inuit Health, and Health Canada; Status
Indians, Aboriginal Peoples, and Canadian Revenue Agency; and other information refer to the AANDC website.
limitations on Charter rights
seCtion 1 of the Charter
Section 1 of the Charter states that the rights and freedoms contained in the Charter are not absolute. This means that some-
times an infringement of someone’s Charter right is allowable 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.
However, laws against libel and slander (which limit some people’s freedom to speak/express themselves) are still valid because
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 (for instance by limiting some people’s freedom
of speech) 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 being limited.
remedies for Violation of a Charter right
seCtion 24(1) of the Charter
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 would 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
38 Women and the Law 7th Edition, 2011
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 (when a law suit is suspended). 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) of the Charter
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 10(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 10(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
alberta human rights laW
In Alberta, as a fundamental principle, all persons are equal in: dignity, rights, and responsibilities without regard to race, religious
beliefs, color, gender, physical or mental disability, age, ancestry, place of origin, marital status, source of income, or family status.
This applies to all laws in the Province of Alberta. The Act provides a Code of Conduct to prohibit discrimination in publica-
tions, discrimination in the supply of goods and services, discrimination in tenancy or accommodation and discrimination in
employment on the grounds listed above. The Act also prevents retaliation against a person who makes a complaint under the Act.
The Alberta legislation has the cumbersome title of Human Rights, Citizenship and Multiculturalism Act. It is administered
by the Alberta Human Rights Commission. Complaints may be directed to the Alberta Human Rights and Citizenship Com-
mission (see Legal and Community Resources for contact information). Complaints must be made within one year after the
conduct occurred. After the Commission receives the complaint, the Commission attempts to settle the complaint between the
parties. If settlement is not achieved, the Commission may hold a Hearing into the conduct. If a breach of the Act is found,
the Commission may issue an Order that the contravention of the Act shall cease and may also compensate the person dealt
with contrary to the Act for wages, income, or expenses incurred by reason of the contravention of the Act. The Order of the
Commission may be filed in the Alberta Court of Queen’s Bench for enforcement.
What is disCrimination?
Discrimination is the prejudicial treatment of an individual or group based on their personal characteristics, such as gender,
age, religion, race, ancestry, disability, or sexual orientation. Discrimination can be intentional or non-intentional. The effect of
discrimination is to impose burdens or disadvantages on individuals or to limit their access to benefits or opportunities, without
consideration of their actual abilities.
types of disCrimination
The three types of discrimination are direct discrimination, adverse effect discrimination, and systemic discrimination. Direct
discrimination occurs when a policy or rule expressly applies to a particular personal characteristic. For example, a landlord refuses
to rent an apartment to a member of a particular ethnic group, based on perceptions about his or her culture. The landlord is
intentionally discriminating against a particular group based on his own prejudice and fear.
Direct discrimination may not be intended to harm an individual or group. For example, an employer hires women, but
Women and the Law 7th Edition, 2011 39
prohibits them from performing manual labour or working night shifts based on concerns about their safety. As a result, the
women are denied an opportunity to earn the same pay as their male counterparts. The employer may not be hostile against
women, but still treats them in a discriminatory manner.
Adverse effect discrimination occurs when a rule that appears to be neutral has a negative impact on a particular group. For
example, an employer imposes a rule requiring all employees to meet a certain fitness level. Most women have difficulty meet-
ing the fitness level. As a result, the rule discriminates against women. The employer would be required to demonstrate that the
rule is reasonably necessary for the job.
Systemic discrimination is a pattern of behaviour, policy or practice that is part of an organization’s structure, which creates
or perpetuates disadvantages for certain groups. Systemic discrimination is subtle and pervasive, and it occurs when an apparently
neutral policy or practice has an adverse impact on a group of people. For example, women and members of visible minority
groups with the same education and experience consistently earn less than white males in similar positions. The perception that
there only certain types of work are “acceptable” for women may be a deep-rooted part of an organization’s structure and beliefs.
areas of proteCtion against disCrimination
The Alberta Human Rights Act (HRA) applies to companies, employers, and government agencies in Alberta. The federal legisla-
tion, the Canadian Human Rights Act, applies to federally regulated companies and employers. The HRA protects individuals and
groups against discrimination in the areas of tenancy, public services, and employment. The HRA also protects against retaliation
for filing a human rights complaint, and forbids discriminatory signs and notices.
The area of tenancy includes the rental of any apartment building or housing that is advertised as available for rent to a
tenant. The area of public services includes access to hotel accommodation, restaurants, retail services, hospitals, and schools. The
area of employment includes equal pay, hiring practices, employment policies, and termination. It also includes membership in
a trade union or association.
In the area of employment, an employer may impose practices that are discriminatory if they are reasonably necessary to fulfill
a work-related objective. The practice may be referred to as a “bona fide occupational requirement” or BFOR (see Women and
Work section for more information).
grounds of proteCtion against disCrimination
The HRA prohibits differential treatment that is based on 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. These grounds are described
in more detail below.
Age is a protected ground in two areas: the publication of discriminatory signs and notices, and in 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 HRA as eighteen years or older. People under the age of eighteen are not protected from discrimina-
tion based on their age. Mandatory retirement at the age of sixty-five is prohibited, subject to the employer establishing a BFOR
(for example, based on safety concerns and the physical limitations of an employee).
Individuals with mental disabilities are protected in all areas under the HRA, including tenancy, public services, and employment.
Mental disability includes any mental disorder, developmental disorder, or learning disorder, regardless of the cause or duration
of the disorder. Mental disability includes alcohol and drug addiction.
Employers have a duty to reasonably accommodate employees with mental disabilities, which includes making efforts to
adapt the job duties and working environment, based on the individual’s particular circumstances or needs. Employers are not
required to accommodate a mental disability that would create a potential health or safety risk.
40 Women and the Law 7th Edition, 2011
Individuals with physical disabilities are protected in all areas under the HRA, including tenancy, public services, and employ-
ment. Accessibility is a major issue for those with physical challenges. Accessibility is more than simple physical access to a
workplace or building. Employers are expected to accommodate physical disabilities, to the point of undue hardship. This may
include purchasing adaptive computer equipment and installing ramps to access the workplace.
HIV-positive status is a physical disability that is protected under the HRA. Employers must not refuse to employ an in-
dividual who is HIV positive, unless doing so would place others at immediate risk of danger or constitute an undue financial
hardship (as, for example, when a day care owner faced economic hardship because clients withdrew their children if the owner
hired an HIV-positive employee).
family and marital status
Family status is interpreted as being related to another person by blood, marriage, or adoption. Marital status includes being
married, single, divorced, or in a common-law relationship.
An individual cannot be discriminated against in the areas of tenancy, public services, or employment based on their family
status or marital status. For example, a landlord cannot refuse to rent an apartment to an individual because of that person’s
parent’s or sibling’s previous rental history.
Employers are required to make reasonable accommodations in situations where marital or family status may interfere with
the individual’s ability to perform her job duties. For example, an employee may request a change in work shifts because of her
responsibility to pick up a child after school. The employer is expected to accommodate the employee’s request if possible. How-
ever, if there are not enough employees to meet the demands, the employee will be expected to make other family arrangements
in order to continue working at the same job.
gender and pregnanCy
Under the HRA, gender is a protected ground in all areas, including tenancy, public services, and employment. The category
of gender discrimination includes discrimination on the basis of pregnancy. Employers are not permitted to ask women in job
applications or interviews if they are pregnant or plan to have children. Women cannot be fired, laid off or demoted because
they are pregnant. Landlords cannot refuse to rent an apartment or house because a women is pregnant, unless the building is
designated or seniors or adults only. Women cannot be refused access to hotels, restaurants, stores, schools, or hospitals because
they are pregnant.
Gender discrimination also includes sexual harassment. Sexual harassment is any unwanted sexually-oriented practice that en-
dangers a woman’s job, causes her discomfort or humiliation at the workplace, or in any other way threatens her job 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 includes any activity with sexual overtones such as verbal innuendo, comments, looks, physical
contact, or requests for sexual favours. Sexual harassment may be accompanied by threats of demotion or firing if the victim does
not comply with the harasser’s demands, or receiving 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 that women of all ages in all occupations are subjected to sexual harassment.
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 the appropriate section of the Criminal Code, such
as assault, sexual assault, threat, or intimidation. You would have to notify the police who would investigate your complaint and
determine whether there are “reasonable and probable grounds” to lay charges. If charges were laid, you would have to testify at
Women and the Law 7th Edition, 2011 41
the trial. However, the police may not lay charges without some corroborating evidence (other evidence which helps prove that
your story is true), 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 financial 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.
The fourth course of action available is to file a complaint to the Human Rights Commission, which is described below.
equal pay and employment equity
Section 6 of the HRA 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.
Employment equity is a policy whereby companies will have staff 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 not specifically
included in the human rights legislation in Alberta.
Individuals cannot be subject to discrimination based on their religious beliefs. Religious belief refers to a system of belief,
worship, and conduct. An employer is expected to reasonably accommodate employees’ religious beliefs in establishing work
schedules. For example, an employee who needs to pray at set times may need her break schedule to be modified to coincide
with prayer times. Employees may need accommodation of the employer’s dress code, including standards about headgear or
dress, if it conflicts with religious observance. An employee may require a day off to observe a religious holiday. When requesting
accommodation, the employee should provide information about the guidelines and rules of her faith and religion so that the
employer can assess and respond to the request.
filing a human rights Complaint
If you believe that you have been the victim of discrimination, you may file a complaint with the Human Rights Commission.
After a complaint has been filed, the Human Rights Commission may appoint a conciliator to attempt to reach a settlement. If
no settlement is reached, the director may appoint an investigator to look into the complaint. 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 thirty days of
receiving notice of the dismissal of the complaint or notice of discontinuance.
If the Commission finds that “reasonable grounds” exist, a human rights tribunal is appointment to deal with the complaint.
Evidence may be given before a human rights tribunal in any manner that the tribunal members consider appropriate, and the
tribunal 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 HRA is not meant to punish a wrongdoer, 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 wrongdoer to apologize, to change its
practices, to pay you for lost wages and opportunities, and for psychological harm.
proteCtion from retaliation
Individuals are protected under the HRA from any form of retaliation, such as discharge, suspension, expulsion, intimidation,
or coercion. The HRA 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
42 Women and the Law 7th Edition, 2011
additional grounds and areas to Consider
Criminal reCord CheCks
Unlike the human rights legislation in other provinces, the Alberta Human Rights Act does not protect against discrimination on
the basis of criminal record. You cannot file a complaint with the Human Rights Commission if a prospective employer requests
information about previous criminal convictions or terminates your employment based on your criminal record.
However, you may be entitled to file a complaint with the Alberta Privacy Commissioner if your current or prospective
employer requests a criminal record search. Under the Personal Information Protection Act (PIPA), employers are only permitted
to collect and use information about an individual’s criminal record if it is reasonably necessary to establish your qualification
for the position. For example, previous convictions relating to fraud or theft may be relevant if the position involves handling
significant amounts of money.
Under the Protection for Persons In Care Act, a criminal record check is required before you can work or volunteer in a position
providing health care or services relating to children or physical and psychological well being. Examples include seniors’ homes,
women’s shelters, hospitals, supported living facilities, day cares, and addictions counselling centres.
aCCess and proteCtion of personal information
In Alberta, there are three statutes that protect your personal information and permit you to access personal information held
by an organization. The Freedom of Information and Protection of Privacy Act (FOIPPA) applies to information held by govern-
ment agencies. The Personal Information Protection Act (PIPA) applies to information held by private companies and non-profit
organizations. The Health Information Act (HIA) applies to personal health information.
This legislation controls the manner in which personal information is collected, used, and disclosed. In most cases, organiza-
tions must have your consent to use, collect, or disclose personal information about you.
An important exception in PIPA is that your employer may use, collect, and disclose personal information without your
consent for the purpose of establishing, maintaining, or ending your employment relationship. However, your employer must
demonstrate why it is reasonably necessary to use, collect or disclose the information.
You have the right to access to your personal information and request corrections if any of the information is inaccurate.
If you suspect that your privacy rights have been violated, you are encouraged to first file a complaint with the institution or
organization that your information was handled inappropriately. If you are not successful, you may contact the Office for the
Information and Privacy Commissioner, which is the regulatory body for FOIPPA, HIA, and PIPA.
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:
• You cannot run for office or vote in municipal, provincial, or federal elections.
• You are not eligible to apply for some jobs in the Federal government especially jobs requiring high
• You can lose your permanent resident status and be deported if you are convicted of a serious criminal
Note: You need a Permanent Resident (PR) card to prove status and if you travel, you must carry it with you or you cannot
Women and the Law 7th Edition, 2011 43
Can i lose my status as a permanent resident (pr)?
You may lose your status as a Permanent Resident if you are convicted of a serious crime or if you leave Canada intending to
abandon it as your permanent home. Generally, if you are outside of Canada for more than 730 days (two years) in a five year
period, you may lose your residency requirement. 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 or for work, among others. You may have
a right to appeal that decision to the Immigration Appeal Division (IAD).
If you are convicted of a serious criminal offence, you will lose your PR status. The Immigration Department will issue a
removal order against you and only in some cases can that order be appealed. If you cannot appeal or if you lose an appeal, you
will likely be removed from Canada.
Can i be ordered to leaVe Canada?
No matter how long you have resided in Canada as a permanent resident, under the Immigration and Refugee Protection Act
(IRPA) you may be ordered to leave Canada permanently (i.e., deported). You may be deported for several reasons including:
• Engaging in terrorism or belonging to groups that engage in terrorism or espionage
• Being a danger to the security of Canada
• Committing war crimes or crimes against humanity
• Committing criminal offences
• Belonging to gangs or other organized crime groups
• Misrepresentation in the course of any immigration matter
If an officer of the Department of Immigration and Refugee Protection is of the opinion that a permanent resident should be
deported, he/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, he/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
Right to Appeal: You may appeal the decision reached by an officer of the Immigration Division, 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. The basic rights and freedoms available to Canadian citizens are also available to anyone
under the jurisdiction of Canadian law. However, as a Permanent Resident you lose your right to appeal a deportation order if
you are sentenced to a term of imprisonment of at least two years.
hoW Can i sponsor my relatiVes to Come to Canada?
Every Canadian citizen and every permanent resident who is living in Canada and is at least eighteen years old may sponsor
certain relatives to immigrate to Canada. These relatives may 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;
2. Children who are either eighteen years or younger and unmarried, or over eighteen and full-time students
or who have a disability;
3. Adopted children eighteen years or younger (this does not include a child who is adopted for the purpose
of gaining admission to Canada);
4. Child to be adopted who is eighteen years of age or younger who is orphaned or placed with a welfare
authority for adoption and who the sponsor intends to adopt;
5. Parents, grandparents;
6. Brothers, sisters, nephews, nieces and grandchildren who are unmarried or orphaned and are eighteen
years of age or younger;
7. Any other relative if you have none of the above and no close family in Canada.
A sponsor must sign a Sponsorship Agreement promising to provide the new immigrant with basic personal needs, 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 may 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.
44 Women and the Law 7th Edition, 2011
alberta immigrant nominee program (ainp)—What is it?
The AINP is an immigration program operated by the Province of Alberta (the Ministry of Employment and Immigration) in
conjunction with the federal department of Citizenship and Immigration Canada (CIC).
Individuals nominated by the Government of Alberta, together with their spouse or common-law partner and depend-
ent children, can apply for a permanent resident visa through CIC as a Provincial Nominee. CIC makes final decisions on all
Provincial Nominee permanent resident applications.
The AINP is a program for permanent residence. AINP nominations will not be issued for the purpose of obtaining
temporary work permit extensions. At the time of printing this booklet, the AINP is not accepting applications postmarked
after August 23, 2010 for the US Visa holder or Family Stream categories. Only Employer-Driven, Strategic Recruitment, and
Self-Employed Farmer Stream categories are taking applications. However, this is subject to change so check the website for
the most up-to-date information: www.albertacanada.com/immigration/imigrating/ainp.aspx
Application forms may be found here as well or call 310-0000 to have the forms mailed to you.
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?
The Right of Permanent Residence Fee (RPRF), formerly called the Right of Landing Fee, is $490. The fee applies to each of
the applicants as well as a spouse or common-law partner. It must be paid before the immigrant visa is issued overseas or before
the applicant becomes a permanent resident in Canada.
Exemption: Dependent children and Protected Persons including Convention Refugees are exempt from paying the RPRF.
Note: The Right of Permanent Residence Fee (which is paid to the government) should not be confused with processing
fees ($550) for immigration services.
hoW do i apply for Canadian Citizenship?
You may apply for Canadian citizenship if:
1. You are eighteen years of age or over;
2. You are a permanent resident and have lived in Canada for three years (1095 days) out of the past four
years before you make your application for citizenship;
3. You have an adequate knowledge of either the French or English language;
4. You have an adequate knowledge of Canada and the rights and responsibilities of citizenship;
5. You have not been convicted of an indictable offence in the three years before applying; you are not in
prison or on parole or probation;
6. You are not subject to an immigration inquiry, investigation or removal order.
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, or online: www.cic.gc.ca). Along with the application form, you
will be required to supply:
1. PR card or proof of PR card;
2. Two pieces of ID including your birth certificate if available;
3. Two photos;
4. A fee of $200 (subject to change).
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 approximately nine to eighteen months to process.
Women and the Law 7th Edition, 2011 45
lgbt (lesbian, gay, biseXual, and transgender)rights
According to the Supreme Court of Canada sexual orientation is considered a protected ground under the Charter even though
it is not explicitly mentioned in the Charter. It has been added to all provincial human rights acts including most recently to
Alberta’s. Transgender rights have traditionally been protected under gender or sex and may soon be protected on the grounds
of gender identity and gender expression (bill C-389).
Same sex marriages became law in Alberta on July 20, 2005 through the Civil Marriage Act, a federal act which defines
Canadian civil marriage as a union between “two persons to the exclusion of all others.” However, this does not mean that
clergymen or other officials can be forced to perform marriage ceremonies if they do not want to. Same-sex married couples are
also allowed to get a divorce the same way opposite-sex couples are.
The Supreme Court has also ruled that same-sex couples living in common-law are allowed to apply for spousal support
benefits the same way that opposite-sex common-law couples can as long as they live together continuously for a period of not
less than three years, or in a relationship of some permanence and if they are the natural or adoptive parents of a child.
Canada also allows people to sponsor their same-sex partners from other countries depending on where the marriage occurred
and only if it was legally recognized (for a list of applicable countries see the Citizenship and Immigration Canada website).
However, same-sex couples still have to prove the same things as opposite-sex couples such as proving that the relationship is
legitimate and that they have lived together for at least a year. The Supreme Court has also ruled that the government must pay
Canada Pension Plan benefits to individuals whose legally recognized same-sex partner has passed away.
There are still some ways in which LGBT individuals can be discriminated against legally. For instance the age of consent
for anal sex is eighteen while it is sixteen for all other forms of sex. Also, gay men are still not allowed to donate blood.
The Ontario Human Rights Tribunal has also set out recommendations regarding strips searches conducted by the police
on transsexual detainees. For instance, transsexual detainees must have a choice of who conducts the search (a male or female
police officer), they should be allowed to self-identify and police officers should not be allowed to opt-out of strip searching as
it could lead to a chain of discrimination and further the negative effect on the detainee.
46 Women and the Law 7th Edition, 2011
ChApTEr 5: WOmEn, mOnEy And prOpErTy
TAXABLE INCOME BRACKET FEDERAL TAX RATE COMBINED FEDERAL AND
PROVINCIAL (AB) RATE
$41,544 or less 15% 25%
Between $41, 544 and $83,088 22% 32%
Between $83,088 and $128, 800 26% 36%
$128,800 and over 29% 39%
hoW does the inCome taX system Work?
In Canada, you generally have to pay income tax on all income that you earn. The normal categories of income include:
• salary or wages
• income from a business or a rental property
• pension benefits
• capital gains (which results when assets increase in value)
A person who receives a gift, inheritance or lump sum maintenance payment generally does not have to pay taxes on these
items. After considering all income made from all taxable sources, your income is then reduced by certain deductions to arrive
at your total taxable income. Common deductions include:
• pension plan contributions
• RRSP contributions
• union or professional dues
• child care expenses
• moving expenses
Additionally, non-refundable tax credits may be deducted from the tax calculated on your income. Typical tax credits of this
type include your “basic personal amount” (currently $10,382), amounts for a dependent spouse, tuition fees for yourself or for
children, medical expenses, and charitable donations.
In addition to these non-refundable tax credits, there are also refundable tax credits, which are applicable if your income
is below a certain level, such as the federal goods and services tax (GST) credit. The current federal system has a rate structure
of four marginal tax rates: 15%, 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
$45,000 would pay federal tax at a rate of 15% on the first $41,544, and 22% on the income greater than $41,544.
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 more
at tax time.
should i file an inCome taX return?
Everyone who earns income or who wishes to claim a tax refund or a tax credit must file an income tax return. You must also
pay any tax owing by April 30 of the year of filing. If you are late in paying taxes, you may be charged interest or penalties.
Women and the Law 7th Edition, 2011 47
If you earned less than approximately $9,850 (according to 2011 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 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 GST tax credit, a refund
of your overpayment of tax, Canada Pension Plan contributions or Employment Insurance contributions, or for other reasons.
should i keep reCords and reCeipts?
The Canada Revenue Agency has broad powers to look into a taxpayer’s tax information. Certain receipts do not need to be
included with your return, but you must produce them if the Canada Revenue Agency decides to audit you. Revenue Canada
states that you should keep your supporting documents for six years. For example, for a tax return filed in 2011, you should
keep supporting documents until 2017. Also, keep photocopies of the receipts you do send in, and keep a copy of your income
tax return and the Notice of Assessment which they mail to you.
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 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 Revenue Agency Office. Canada Revenue Agency will also answer
questions over the telephone (see chapter ten of this booklet) and will mail you additional information upon request. Informa-
tion can also be obtained from their website: www.cra-arc.gc.ca. For more complicated questions you should contact a chartered
accountant or a tax lawyer.
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 RRSP contributions 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, the amount you contribute will be deducted
in arriving at your taxable income and you will not be taxed on the amount you contribute. This will lower your income tax for
that year. You will be taxed on the money and on the interest earned when you withdraw it in the future. However, presumably
when you withdraw it this will be during retirement when 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 sixty-nine 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 (RRIF). 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. You can contact an accountant or plan administrator for more information.
Child Care eXpenses
If you are the only person supporting a child, or if you are the spouse with the lower income, you may deduct actual child care
expenses up to a certain maximum. This deduction is in respect of children who are dependent on you and who are under sev-
enteen or who are older than seventeen but are physically or mentally infirm. Child care expenses must have been necessary to
allow you or your spouse to: (1) earn income, (2) carry on business alone or as an active partner, (3) attend school, or (4) carry
on research or similar work for which you received a grant. (Note than in certain situations, the spouse with the higher income
can claim this deduction.)
In 2010, the maximum allowable amounts were $7,000 for each child seven years of age or younger, for whom the disability
amount cannot be claimed, $10,000 for each child over one year of age, for whom the disability amount can be claimed and
$4,000 for each child between eight and seventeen years of age, (or eighteen and older, with a mental or physical impairment,
for whom the disability amount cannot be claimed).
You do not have to file receipts with your return, but you must keep the receipts for examination on request. Note that child
48 Women and the Law 7th Edition, 2011
care expenses include not only daycare and babysitting, but also summer camps and boarding schools. This deduction is up to a
maximum of two-thirds of earned income. If there is no income earned, there is no deduction.
Child fitness Credit
You may also be able to claim up to $500 per child of fees paid for physical activity programs children who are dependent on
you and who are under seventeen or who are older than seventeen but are physically or mentally infirm. This is for the fees that
relate to the cost of registering you or your spouse’s or common-law partner’s child in a prescribed program of physical activity.
To be eligible, the physical activity program must:
1. be ongoing (either a minimum of eight consecutive weeks long or, for children’s camps, five consecutive
2. be supervised;
3. be suitable for children;
4. require a significant amount of physical activity that contributes to cardiorespiratory endurance, plus one
or more of:
º muscular strength;
º muscular endurance;
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.
Spousal support is deductible by the payor (usually the husband) and taxable by the payee (you); that means you will add
the amount of spousal support to your income and you may pay tax on it.
Child support is neither taxable nor deductible.
The spouse who has custody of the children is entitled to claim an “equivalent to married” non-refundable tax credit. If
you and your spouse separate, it is important that your spouse gives Canada Revenue Agency a new separate address or that
you otherwise provide Canada Revenue Agency with proof of the separation or divorce. If you do not do so, you risk Canada
Revenue Agency pursuing you for your former spouse’s tax liability in the future.
Pension programs administered by the governments of Canada and Alberta are designed to provide a certain level of income
security for Canadians over sixty-five 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 sixty-five years of age, have Canadian legal residence sta-
tus (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 forty years since your eighteenth birthday or if you
do not live in Canada but have lived in Canada for at least twenty years since your eighteenth 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.
A minimum of ten years’ residence in Canada after the age of eighteen is required in order to receive the Old Age Security
(OAS) benefits while you are living in Canada. The amount of the benefit will vary depending upon how long you have lived
in Canada. For example, if you have lived in Canada for at least forty years since turning age eighteen, you will qualify for the
full amount of the OAS benefit. You can also qualify for the full benefit if you were twenty-five or older on July 1, 1977, have
been living in Canada for ten years just prior to applying for OAS and meet one of the following three additional requirements:
• You lived in Canada on July 1, 1977;
• You lived in Canada before July 1, 1977, after having turned eighteen;
• You possessed a valid immigration visa on July 1, 1977.
Women and the Law 7th Edition, 2011 49
If you do not qualify for the full benefit you may still qualify for a partial benefit.
As this pension is not automatically paid to you when you reach sixty-five, you should apply for your Old Age Security
Pension six months before your sixty-fifth 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.
Once your OAS benefit has been approved, you may continue to receive it even if you move outside of Canada so long
as you have been living in Canada for at least twenty years after your eighteenth birthday. If this is not the case, your benefits
would continue for only six months after you move.
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. As of April 2011, the maximum benefit is $526.85 per month.
Old Age Security benefits are subject to income tax. Individuals with an income of, in 2011, $67,668.00 or more per year
will be subject to a clawback by the government of the OAS benefits. The annual OAS benefit will be reduced by 15% of the
excess income over $67,668.00, up to the maximum of the total OAS benefit. If your income exceeds $109,764.00, for 2011,
the full amount of the OAS benefit would be clawed back by the government.
guaranteed inCome supplement and alloWanCe: 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 (aside from OAS). The maximum amount for a single person (which includes a
widowed, separated, divorced, unmarried homemaker, or someone who is married to a non-recipient), who has no income other
than the Old Age Pension, is currently $665.00 per month as of April 2011, (GIS only, not including OAS). The maximum is
$439.13 per month for a recipient who is married to another recipient. If you are single and your annual income is $15,960.00
you will receive the GIS. If you are married or living common law and your partner is not receiving OAS and your combined
annual income is $38,256.00 you will receive GIS. If you are married or living common law and both of you receive OAS, and
have a combined income under $21,120.00 (exclusive of your OAS) you will receive the GIS. 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.
In addition to the GIS, there is a further benefit called an Allowance. This benefit is paid to the spouse, widow, or widower
of an OAS recipient whose annual income is below $29,568.00 (married applicant/combined income of applicant and spouse)
or $21,504.00 (widowed applicants). You must be between sixty and sixty-four years old and have lived in Canada for at least
ten years after turning eighteen to qualify for the Allowance. The Allowance stops once you turn age sixty-five and you become
eligible for basic OAS. The maximum Allowance is $965.58 per month for the spouse of an OAS recipient. For a widow or
widower of a deceased OAS recipient it is $1,070.78 per month.
does the goVernment of alberta proVide a supplement?
The Alberta Government runs the Alberta Seniors Benefit Program which assists lower income seniors. It provides monthly
cash benefits for eligible seniors. 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
($371.25 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.
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 manda-
tory 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
$2,217.60 per year (in 2011). Employers also pay an equal amount.
50 Women and the Law 7th Edition, 2011
You contribute to the Canada Pension Plan on most types of employment income earned between the ages of eighteen
and seventy. 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. Self-employed persons can contribute a maximum
of $4,435.20 per year. 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 sixty-five, 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 con-
tributor, 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 ter-
mination of Common-laW and same-seX relationships?
If you have recently obtained a divorce or annulment or separated from a same-sex or opposite-sex legal or common-law spouse,
you or your former partner may apply to have Canada Pension Plan credits earned during the relationship divided equally be-
tween the two of you. In other words, you can receive half the pension plan credits your spouse or partner accumulated during
your marriage and he or she will receive half of yours.
The following criteria for division of the credits vary depending upon the date of separation or divorce and the type of
• January 1, 1978 to December 31, 1986—(credit splitting did not exist before January 1, 1978) If the
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 1, 1987, if the 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 sep-
arated 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 31, 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.
• You do not have to split your CPP credits upon marriage or other relationship breakdown in Alberta. You
can opt out of the pension credit splitting provisions of the CPP by agreement with your spouse or partner.
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
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 sixty if you have made contributions to the Canada Pension Plan
in at least one calendar year. Age sixty-five is the earliest age you will receive full benefits. However, you can apply for a reduced
pension any time between the ages sixty and sixty-five. Payments are reduced by 0.5% each month you take your pension before
your sixty-fifth birthday or you may contribute to the Canada Pension Plan until you reach age seventy 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 sixtieth
birthday. If you fail to do so, it could result in a loss of benefits.
Women and the Law 7th Edition, 2011 51
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
eighteenth 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
fifty-five and sixty-four. The program provides premium-free 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 fifty-five
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 non-
sponsored 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 sixty-five. 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 registered pension plan as a
part of an employment benefits package. In some cases, they also offer non-registered or supplemental pension benefits as well.
If either you or your partner is a participant in any such plan, you should familiarize yourself with the details of your particular
plan. The employer will fund a minimum of one-half the cost of a defined benefit pension benefit that has been accrued by an
employee (the value of which is based on a fixed formula that usually involves a percentage calculation based on years of service
while a member of the plan and final average earnings), or in a defined contribution pension plan, the employer will match the
contributions made by the employee.
Once the pension has vested after a certain number of years of service by the employee, the employee becomes entitled to
receive the full value of the pension benefit accrued under the defined benefit arrangement (and the employer must fund it) or the
full value of the account balance, in the defined contribution arrangement, including both employee and employer contributions
and the investment returns on these contributions. If the employee dies before retirement, his or her spouse will be entitled to a
survivor’s pension or other death benefit. Part-time workers may also be eligible to join the plan. A right to a pension that has
accrued during a marriage is considered a marital asset according to the Matrimonial Property Act which means that you are obliged
to share its value with your legal spouse upon a marriage breakdown. Different considerations apply to common-law spouses.
The rules regarding division of pension benefits upon marriage or other relationship breakdown, their methods of valuation
and division either from within the pension plan itself, or outside the pension plan by payments of other assets, are very technical
and complex and you should consult legal counsel when dealing with these. This is particularly as your pension benefits, along
with your home, will often be the most valuable assets you possess.
52 Women and the Law 7th Edition, 2011
Chartered aCCountants referral serViCe
The Institute of Chartered Accountants of Alberta offers a free referral service to the public. Through the referral service, 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 con-
tact in each firm. You should advise the accountant that you have used the referral service. You will be entitled to half an hour
of free consultation at no charge or obligation. More information about this service is available at www.albertaca.ca or you can
telephone the Institute of Chartered Accountants at 780-424-7391 or 1-800-232-9406.
so you Won a lottery:
In Canada, prizes received in lotteries are usually 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:
• 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.
• There may be unexpected problems if you put a child’s name on the winning ticket.
If you want to share your winnings and it is not clear to Revenue Canada that another 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 eighteen. 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 eighteen.
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 fourteen 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 eighteen.
Credit is a great convenience in today’s society. It allows you to make purchases now and pay for them later (although if you
pay too late, you likely have to pay additional costs in the form of interest). Credit also relieves you from having to carry around
a lot of cash.
Credit card services may be provided directly by a retailer (e.g. The Bay) or through a third party (e.g. VISA). 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. A credit rating is a measure of how dependable you are when it comes to repaying
hoW Can i establish a good Credit rating?
Your credit history is recorded in files that are maintained by credit bureaus and other organizations. There are two major credit
bureaus in Canada: EQUIFAX and TransUnion Canada. All credit granting organizations generally check your credit with the
Women and the Law 7th Edition, 2011 53
credit bureaus before issuing you a credit card, mortgage, loan, or other form of credit. They will also inform the credit bureaus
of your credit, payment transactions, and history.
Therefore, it is important that your credit record is in good standing and is accurate. To get a good credit rating, you have
to show you are reliable in terms of re-payment. 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,
utilities). Pay back all loans on time. Note that if you are married, your credit rating may be linked to that of your husband.
You may wish to ensure that your credit history is accurate, especially prior to making a credit or mortgage application. To
do so, you can contact EQUIFAX or TransUnion Canada to receive a copy of your credit report. You can receive this by mail,
free of charge, or view your credit report online for a fee. If something appears in your credit report which you feel is inaccurate,
you can request that the information be corrected. You can also add explanatory comments to your report.
For more information, contact one of the credit bureaus directly at:
TransUnion Canada: 1-866-525-0262 www.tuc.ca or
Equifax Canada: 1-800-465-7166 www.equifax.ca.
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 bank 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 may 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, in which case you
could send a fax to reach them 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 security inter-
est 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 inter-
est 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.
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
54 Women and the Law 7th Edition, 2011
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 impos-
sible 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.
hoW do i Create a budget?
Whether you are single or married, it is important to have a good understanding of your finances. The easiest way to do this
is to create a budget. A budget tells you how much money you have and how much money you need. To create a budget, you
should first record all sources of monthly income. Then create a list of monthly expenses—decide which of those expenses are
“fixed” like rent or a car payment, and which are “variable” like food or entertainment.
Next, total your monthly income against your monthly expenses. If this shows more income than expenses, you are off to a
good start, and you can allocate the extra to retirement savings or paying down more debt. If your expenses are more than your
income it means you will have to make some changes. This can be done by trying to lower your variable expenses or increasing
You should keep track of all your income and expenditures and review your budget regularly—weekly or monthly. That way
you can see where you have done well and where you could improve.
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 2011, the maximum amount is $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. Provincial Court,
Civil Division is sometimes referred to as small claims court.
Civil court also hears applications for landlords and tenants under the Residential Tenancies Act and Mobile Home Sites Ten-
ancies Act. The court can hear applications up to $25,000, subject to some restrictions
What aCtions Can be brought to proVinCial Court, CiVil diVision?
You may bring an action in small claims court for any amount of money; however, if you are trying to recover more than $25,000
you have to “waive” or give up your right to the amount above $25,000.
You may bring many different kinds of actions in provincial court, civil division, including an action for an unpaid loan, an
action to recover a damage deposit, an action for non-payment of rent, or an action to recover damages arising out of a car accident.
In all courts in Alberta, including Provincial Court, Civil Division, you must sue within a specified period of time known
as the limitation period. In general, the rule is that you must sue within two years from the time that the “damage” arose. 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.
However, limitation periods are not always straightforward and 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:
Women and the Law 7th Edition, 2011 55
1. Do I have enough evidence to prove my case?
2. Will the cost of suing be greater than the amount I am suing for?
3. If my suit is successful, does the other party have the ability to pay the judgment (or is the other party
insolvent or bankrupt)?
4. If my suit is successful, will I have to take further action in order to collect the judgment, and what will
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 or people you are suing, i.e., is it an individual or a
company you are suing? If you start the legal action, you are called the plaintiff on the claim. As the plaintiff, you should also
know the addresses and phone numbers of both plaintiff and defendant(s). The claim must include the reasons why you are
suing and the amount you are asking for. You must file the claim at Court, and then it must be served on the defendant(s). You
can serve it by giving the claim to the defendant(s) in person or sending it by registered mail.
After the claim has been served, you must prove that it has been served. You do this by filling 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.
If the claim is properly filed and served and the defendant(s) do not issue a defence, you may be able to get judgment against
them by going to court and presenting your side of the story and proving that the claim was served and there was no defence filed.
If a defence is filed, the Court will then contact both parties to set up a pre-trial conference if it seems like the claim could
be resolved through mediation before trial. At a pre-trial conference, you will be able to meet with the defendant and a judge
of the Civil Division of Provincial Court to attempt to resolve your dispute at an informal meeting.
If you are unable to resolve the issue at the pre-trial conference, or if you do not have a pre-trial conference, you will continue
to trial. 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 is 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. In addition, if the contract
stipulates that you will be paid interest at a certain rate (for example, on a loan or a debt) the Court can award that amount of
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 within thirty days from the day that judgment was given and serve it on the other party. You must also
pay $100 security for costs. 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 garnishee-
ing the debtor’s wages or by obtaining a writ of execution which allows a 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.
56 Women and the Law 7th Edition, 2011
Where Can i get more information?
There are several Law Information Centres in Alberta; staff at these centres can help you understand the process and give tips
to help you along the way. They will not provide legal advice or tell you what to write in a claim or form, but they will help
you learn about general court procedures, locate and explain court forms, and learn about legal advice options. They can also
explain the steps to take in making a legal application and refer you to legal and other resources in the community (see Legal
and Community resources for contact information).
inCome support (Welfare)
Where does it Come from?
Most of the social assistance in Alberta comes from the Provincial Government. Aboriginal Affairs and Northern Development
Canada partners with the Provincial Government in funding and delivering social programs, including income support, in First
Who Can apply for inCome support?
Anyone who lives in Alberta and who is in need may apply for provincial social assistance.
Alberta Works, a department of the Government of Alberta, helps people who can work, find and keep jobs, and helps
individuals and families meet their basic needs. Depending on your situation, Alberta Works may provide you with income sup-
port. Income Support helps people who have no other way to pay for basics such as food, shelter and clothing.
You may qualify for income support in three general situations: (1) if you have difficulty working because of a chronic mental
or physical health problem or because of multiple barriers to work, (2) if you are looking for work, working or unable to work
in the short-term, or (3) if you need upgrading or training so that you can get a job.
If you are eligible, the income support benefits you would receive depend on the size of your family, the age of your children,
any special needs, and your ability to work. The core shelter benefit is for rent, mortgage, utilities, damage deposit, fire insur-
ance, etc. and the core essential benefit is for food, clothing, personal needs, transportation, telephone, and household supplies.
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. You may also receive health coverage benefits, information, and training to find a job as well as help obtaining child
hoW do i apply for inCome support?
The first step in applying for income support is filling out the Income Support Application which is available at
www.employment.alberta.ca, and can be obtained from a social worker or from a Government of Alberta Service Centre. When
you complete and return the form to your local Government of Alberta Service Centre (you can find locations of Service Centres at
www.employment.alberta.ca) you will be given a time to meet with a worker. The worker will then review the information you
have provided in your application to determine whether you are eligible.
You will be required to bring the following documents to your meeting with a worker:
1. The completed Income Support Application;
2. A completed Direct Deposit Registration;
3. Identification that has your name, picture, signature, and birth date (such as a driver’s license or passport);
4. Proof of employment income and/or other income if applicable;
5. Proof of assets;
6. A medical form or letter from your doctor if you are unable to work because of health reasons; documents
to show other needs (such as special diets, etc.);
7. Your immigration papers if you immigrated to Canada in the past ten years.
While you may feel that the information required is too personal, the government views this information as essential to
pinpointing the problems and needs of each applicant. If you refuse to cooperate, your application may be turned down. As well,
the information you provide is protected. There are strict rules about what information is collected, how the information is used
and who can access your information.
Women and the Law 7th Edition, 2011 57
What determines my eligibility for inCome support?
The major factor in determining eligibility is your inability to provide yourself and your dependents with basic necessities but
other factors may be considered. You may qualify under the following circumstances:
1. You are doing everything you can to find a job if you are able to work;
2. You and your spouse/partner have income less than the financial benefits provided under income support;
3. You and your spouse/partner are eighteen years of age or older;
4. You live in Alberta;
5. You agree to apply for all resources available to support you and your family;
6. You and your spouse/partner have assets lower than the limits allowed under income support.
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 spousal 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.
If your employment income is not enough to provide you with the necessities of life or if you are waiting for a paycheque,
you may be entitled to receive income supplements or other assistance in the form of assistance in obtaining employment, vo-
cational, technical, or any other training prescribed by regulations.
What does inCome support CoVer?
The basic necessities of life such as food, clothing, shelter, and utilities are all provided by income support. 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. To receive an allowance for daycare, 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 Alberta Works 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.
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. You have thirty days to appeal from the day you were notified of the decision. The forms must be
filled out in writing, then mailed or delivered to your welfare office.
The appeal is first reviewed by the supervisor of the district office. The supervisor may be able to resolve the matter with
you without an appeal hearing. If the matter is not resolved, you will receive a letter telling you the date, time, and location of
your appeal hearing.
Your matter will be reviewed by a Citizen’s Appeal Panel made up of members of the community who are independent of
the agency. The appeal procedure is very informal. 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. In the past, many appeals have been successful. If you feel that you
have been treated unfairly, do not hesitate to assert your right and appeal an unfavourable decision.
58 Women and the Law 7th Edition, 2011
What is a Will?
A will is a written document that comes into effect on your death. In it you state, among other things:
1. Who you want to care for your children (called guardians);
2. Who you want to give your money, belongings and property to upon your death (called beneficiaries)
3. Who you want to be in charge of distributing your money, belongings and property (called an executor/
There are two types of wills: a formal will and a holograph will. A formal will is one that you write, fill out, or type or that
someone else writes, fills out, or types on your behalf. You must sign it in front of two witnesses who are together with you at
the same time. The witnesses must also sign the will in front of you and each other. The witnesses cannot be persons receiving
your money, belongings, or property in the will. They cannot be the husband, wife, or live-in partner of anyone receiving anything
in your will. You can use a preprinted form to make a will as long as it is properly completed and witnessed. Generally, lawyers
prepare formal 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 will is one which you handwrite yourself. You must handwrite the entire will and sign it at the bottom. This
type of will does not need any witnesses.
If you die without a will or if the will you have done is not done correctly, your money, belongings, and property will be
distributed according to the Intestate Succession Act. This Act lists the family members who will receive your money, belongings,
and property on your death. If you do not have any family members, your money, belongings and property will go into a fund
run by the government.
Note: In 2012, the rules for making wills will change with the new Wills and Succession Act.
Who Can make a Will?
Anyone eighteen years or older who is mentally competent may make a will.
If you are not eighteen, but you are:
• now or have been married or you have had a live-in partner;
• a member of the Canadian Forces and were placed on active service under the terms of the National
Defence Act (Canada);
• a mariner or seaman in the course of a voyage;
you may be able to make a valid will. Check with a lawyer to see if you fit into one of the above categories.
do i need a laWyer?
• have complicated family issues;
• have a complex estate;
• wish to appoint guardians for your children who are under eighteen years of age (minor children);
• want to leave money, belongings and property to your minor children;
consider seeing a lawyer who will 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 to other friends or family members who are adults or to charities. You can make
your own formal will and have it properly witnessed or write a holograph will.
What do i need to think about When Considering my Will?
1. What is my “estate”?
When you die, certain things you own are gathered together to form your estate. Your will then states how your estate is to be
divided among the people or charities you choose. You may own personal belongings, cash, bank accounts, a house, or other
Women and the Law 7th Edition, 2011 59
property (all are assets). Some of these assets may form part of your estate and be distributed according to your will. Some of
them may pass to other people outside of your estate and are not necessarily addressed in your will.
2. What property will pass outside of my estate and my will?
There are three main types of assets that pass outside of your estate and will not pass through your will when you die:
1. jointly-held assets if the other joint owner survives;
2. registered accounts (eg. RRSPs);
3. life insurance benefits.
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 unless the other joint owner dies at the same time and, even then, only in certain circumstances.
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 the husband dies, the wife becomes the sole owner of the home and vice versa.
There is nothing to gift in the will if only one dies. Joint property can be included in your will but will only pass to the bene-
ficiaries you choose if the other joint owner dies before or with you and, even then, only in certain circumstances. Joint owners
should consult with a lawyer to consider how to coordinate their wills if they die together or what happens if the survivor dies.
Joint ownership is different from tenancy-in-common, where there is more than one owner of a property but each owner holds
a certain percentage of the property. In that case, each tenant-in-common owns their separate property and it will be included
in their estates on death.
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.
Think carefully before registering any asset in joint names as there are other advantages and disadvantages you should
consider. A lawyer will be able to advise you which form of ownership is best for you and how it impacts your will and estate.
Typically, registered accounts (such as RRSPs) and life insurance proceeds will pass directly to the beneficiaries you named
in writing when you opened the account or purchased the policy. You can typically change those beneficiaries any time provided
you do so in writing. However, seek the advice of a lawyer before naming young children (under eighteen) as beneficiaries of
registered accounts or life insurance policies as those children will not be entitled to the funds until they are eighteen years old
and someone will have to manage the funds until that time. If not set up properly, the Office of the Public Trustee (a govern-
ment department) will step in to manage the funds until the children turn eighteen.
3. What property do I own that I can gift in my will?
Any property which is registered in your name alone or is in your sole ownership or sole possession will form part of your estate
and should be included in your will. This will include, among other things, personal belongings, bank accounts in your name
alone, property registered in your name alone.
If you own jointly registered assets and the other owner dies before or with you, then under certain circumstances those
assets will pass to you automatically and form part of your estate. Those assets should be included in your will but with the
understanding they may pass through your will if the other owner does not survive you.
Registered accounts and life insurance proceeds may also pass through your estate if: (a) the beneficiary you named when
you opened the account or purchased the life insurance has died before or with you, (b) if you have named your estate as the
beneficiary, or (c) if you did not name a beneficiary at all.
4. Who are Guardians and what is their role?
If you have minor children (under eighteen years of age) you should appoint Guardians in your will. The Guardians will be
responsible for the day-to-day care of your minor children until they are eighteen years of age. They effectively step into your
shoes to parent your children.
5. Who is the Executor and what does he or she do?
In your will you should appoint someone as the Executor/Executrix. This person is responsible for, among other things, gather-
ing up your assets, paying your debts from them and then distributing what is left to the beneficiaries you have chosen. This is
a significant job and you need to choose someone who is responsible and who you trust.
If you have minor children or think your children should be older before getting a gift under your will (eg. twenty-one or
twenty-five years of age), the Executor is the person who looks after the children’s funds until that age. In that role, the Executor
is also called a Trustee as he or she is holding funds for someone else. All assets left to children must be held until they are at
60 Women and the Law 7th Edition, 2011
least eighteen. Therefore, your will should give the Trustee authority to give funds to the guardian for minor children’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.
The Executor(s) and Guardian(s) can be the same people or different people—that is up to you.
6. Who should I consider as Beneficiaries?
You should consider your husband or adult interdependent partner (a partner you have lived with for at least three years and/
or have a child with). If you are single or have children from another relationship, you should consider your minor children as
beneficiaries. Under law, you have certain obligations to look after these people in your will. You should also consider your adult
children. However, under law, you only have obligations to your adult children when they, because of a disability, cannot earn a
living for themselves.
You may also consider other family members, friends and charities. You may gift certain items (eg. your car), you may give
a certain sum of money (eg. $500), you may give a certain portion of your estate (percentage) or you may give the entire estate
or what’s left of it to one individual or you may divide it up equally amongst a number of individuals.
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 (in 2012, it
will be called the Wills and 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 favourite 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 eighteen. 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 or adult interdependent partner dies and leaves you and/or your children out of his will, you can apply for help
under the Family Relief Act (in 2012, it will be called the Wills and Succession Act). The court can take part or all of his estate
and give it to you and your children, but 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. 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 benefi-
ciary. This tax is called a succession duty or estate tax. Alberta has no succession duties. Quebec is the only province in Canada
Women and the Law 7th Edition, 2011 61
that still has succession duties. The federal government may charge income or capital gains tax on certain property 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 1 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, 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 (2012, the Wills and Succession Act). In order to make a challenge under the Dependants Relief Act, you must be act-
ing for a child under eighteen years, or one who was still financially dependent on the deceased because of mental or physical
disability. Or you must have been married to the deceased or an adult interdependent (common-law) partner of the deceased.
Under Alberta law, you could be disqualified from claiming assistance from your husband’s estate, if the judge is of the
opinion that the character or conduct of a dependant disentitles 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.
effeCt of marriage/diVorCe on a Will
For now, 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 and says so specifically. It is important for you to make a new will after you marry. After the new
rules come into effect (expected in 2012), this will not be the case.
For now, divorce does not automatically void your will. However, you should consider making a new will during separation
and/or after a divorce. After the new rules come into effect (expected in 2012), a gift in a will to a former husband, wife or
live-in partner will not be valid unless the will is very clear that this was intended after the divorce.
Check with a lawyer if you are making a will prior to marriage or if you are getting divorced.
If your husband dies, you or the executor of his estate must file his personal income tax return by April 30 of the year following
his death, if death occurs between January 1 and October 31, or within six months of death if it occurs between November 1
and December 31, 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. Furthermore, any assets owned by the
deceased are considered to be disposed of at fair market value on the date of death, resulting in taxes payable if there are any
gains resulting from the disposal. If you are the beneficiary for your husband’s RRSPs, the amounts can be transferred to your
own RRSP without tax consequences. Otherwise, the RRSPs will be considered to be disposed of at the date of death and rolled
62 Women and the Law 7th Edition, 2011
into the estate for tax purposes. The full amount of personal tax credits may be claimed on his behalf.
Arrangements should be made to have any benefit payments (GST/HST, Canada Child Tax Benefit, etc.) transferred to you.
For further and up-to-date information on filing for a deceased person it is best to consult with Canada Revenue Agency
(www.cra-arc.gc.ca) or call 1-800-959-8281.
guardians and trustees for adults
When a person over the age of eighteen lacks the capacity to make reasonable personal decisions or care for herself, a Guard-
ian can be appointed by a Court. The person appointed to act as Guardian becomes responsible for the nonfinancial decisions
affecting the represented person. For example, the Guardian will make decisions concerning the represented adult’s living ac-
commodations, employment, education, and health care.
It is often better if a relative or a close friend of the represented adult is appointed as guardian, because that person would
be familiar with the represented adult’s likes and dislikes, opinions, religious and cultural backgrounds, etc. In cases where no
person is willing, able, and suitable to be a Guardian, the Public Guardian can be appointed by the court. A guardian’s authority
is limited to certain terms set out in the court order.
An application can be made to the court to take responsibility for the assets and income of an adult who lacks capacity. This
application can be joined to the application for guardianship. 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.
The Public Trustee is the government official who is responsible for all financial matters concerning unmarried children under
eighteen years or where authorized to act by order of the court on behalf of adults who lack capacity. The Public Trustee is ap-
pointed 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 represented adult), if you have not named anyone 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 eighteen 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 an adult who lacks capacity, the Public Trustee (or private trustee, if there is one appointed) will collect
those assets which belong to that adult. If it appears that the dependant 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 dependant
adult. The Public Trustee will arrange a budget for the dependant adult and will supervise her estate. If the dependant adult
becomes competent to manage her own affairs, the Public Trustee will then turn the remainder of the estate over to the depend-
ant adult. If the dependant adult dies, all money and property held by the Public Trustee will be turned over to the executor or
administrator of the dependant adult’s estate.
The Public Trustee is bound by law to ensure that the property owned by a minor or a dependant adult is not wasted. The
Public Trustee cannot make gifts to family members of the dependant 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 only when appointed by the court. If you become physi-
cally disabled, whether permanently or temporarily, the Public Trustee will not be able to handle your financial affairs for you. If
Women and the Law 7th Edition, 2011 63
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 with-
drawals on your bank account, this is a special power. Your nephew who held your power of attorney would not be 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 be 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 only covers the renting of residential premises and not commercial or business premises. 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 mobile home;
• A combination of a business and living quarters;
• Rooms in the living quarters of the landlord;
• A hotel or lodge;
• A tenancy agreement between an education institution as landlord and a student if the student does not
have exclusive possession of a self-contained unit;
• A nursing home;
• A senior citizens lodge;
• A social care facility;
• 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.
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 use
of the premises, and gives the tenant the same right to privacy as a homeowner would enjoy. However, the Residential Tenancies
64 Women and the Law 7th Edition, 2011
Act and the tenancy agreement also bind the tenant. The tenant must comply with the terms of the tenancy agreement and the
Act. The tenant cannot agree to give up any of his/her rights which are provided by the Act.
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 unless agreed
to by both the landlord and the tenant. It is better if the lease is in written form so that all parties are 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 he/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 twenty-one 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:
(i) periodiC tenanCy
A periodic tenancy is a tenancy without a predetermined expiry date. In other words, the tenancy will continue unless and until
the tenant or landlord gives proper notice to end it.
(ii) fiXed term tenanCy
In a fixed-term tenancy, the tenant agrees to rent the premises for a certain length of time at an agreed-upon rate of rent. At
the end of the fixed term, the tenancy expires. No notice is required at the end of the term, either by the landlord or the ten-
ant. If the tenant remains in the premises at the end of the term in a fixed-term tenancy, a periodic tenancy will be implied if
the tenant pays the landlord and the landlord accepts the tenant’s payment. Such a periodic tenancy will continue until proper
notice is given to terminate the tenancy, either by the landlord or the tenant.
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 agreement,
the landlord can generally require any one of the tenants to pay the entire rent. Additionally, if you have signed a tenancy agree-
ment jointly with another person, you may be responsible to pay the entire rent even if you move out before the other person.
It is important to make sure you give proper notice to the landlord that you intend to end the tenancy before you move out. If
your lease agreement does not contain any details about proper notice, the Residential Tenancies Act indicates what notice must
be given. If you do not give proper notice before you leave, you may be responsible to the landlord for the rent until you meet
the legal notice requirements.
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. In a month-to-month tenancy, you are required to give notice on or before the first day of the tenancy month
to be effective on the last day of that month.
Unless you are somehow breaching the tenancy agreement, the landlord may only terminate a periodic tenancy in certain
situations. Such situations include:
• The landlord has major renovations or conversion to condominiums planned for the premises (this does
not include painting);
• The landlord or a relative of the landlord is planning to move back into the rental premises;
Women and the Law 7th Edition, 2011 65
• The landlord is planning to rent or use the premises for non-residential purposes;
• The landlord has an agreement to sell the premises when the purchaser or a relative of the purchaser
intends to occupy the premises.
In such situations, three-months’ notice must be given by the landlord to the tenant to terminate the tenancy.
However, in the event that you are somehow breaching the tenancy agreement in a substantial way, including failure to pay
rent or damaging the premises, the landlord can evict you in a much shorter time period. Contact your local Landlord and Ten-
ant Advisory Board for further information. Remember that the terms of a tenancy agreement 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 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 ninety 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. Additionally, the landlord may
not increase the rent within the first year of a tenancy agreement. 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 agree-
ment. If you do not do so, the landlord is allowed to assume that you do not dispute the increase in rent.
Can my landlord enter the premises?
Your landlord cannot enter your premises without your consent, unless an emergency requires the landlord to do so or if there is
reason to believe that you have abandoned the premises. Otherwise, the landlord must provide you with written notice at least
twenty-four hours before the landlord intends to enter your premises. The notice must state a reasonable time for the entry:
between 8:00 a.m. and 8:00 p.m., Monday through Saturday. The landlord cannot enter the premises on any holidays, Sundays,
or alternately 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 is entitled to 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 be 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 any increase in a security deposit.
The security deposit must be placed in a trust account and interest must be paid to the tenant at the end of each year of
tenancy or at the end of the tenancy. 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 Tenancies 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.
A landlord and tenant shall inspect the premises with one week before or after a tenant gives up possession of the premises.
Within ten days after you 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 ten-
ant 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 received 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 a damage deposit if an inspection has been performed one week
before or one week after the tenant takes possession of the premises. You are entitled to a copy of this report. A comparison is
made between pre-occupation inspection and the post-occupation inspection to determine damages. If there has been no prior
inspection there should be no reduction to your security deposit.
66 Women and the Law 7th Edition, 2011
If there is damage and the landlord has made a deduction from the security deposit, the balance of the deposit and a state-
ment 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 thirty 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. The tenant must obtain
a civil claim form, dispute note, and Affidavit of Service from Provincial Court, Civil 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 twelve months from the time the alleged problem arose. That means
you must commence an action in court to recover your security deposit within twelve months from when you moved out.
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 chain
on the door that can only be locked when you are in the premises. The chain should be a type that may be installed and removed
without damage to 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, or
to the Dispute Resolution Service. 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. This duty applies to what condition the property is in, what activities are
on the property, as well as what third parties are doing on the property. Also, 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. Ten-
ant’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.
Women and the Law 7th Edition, 2011 67
68 Women and the Law 7th Edition, 2011
ChApTEr 6: WOmEn And WOrk
employment standards Code
What is the employment standards Code?
The Employment Standards Code sets out the minimum rights that Alberta employees are entitled to receive, including mini-
mum wage, hours of work, overtime, and vacation pay. The Code is administered by the Employment Standards Branch, which
is part of the Alberta Ministry of Immigration and Employment.
does the employment standards Code apply to me?
The Employment Standards Code applies to most employees in Alberta. It applies to full-time, part-time, casual, commissioned
and salaried workers, and students. However, the sections of the Code relating to hours of work and overtime do not apply to
certain employees, including domestic workers, farm and ranch employees, salespersons, or managers.
The Employment Standards Code does not apply if you are employed by the federal government, or in a business that is
federally regulated, such as airlines, chartered banks, railways, radio, television and cable stations, post offices, interprovincial
trucking companies, and grain elevators. If you are employed by a federally regulated company, your minimum employment
rights are set out in the Canada Labour Code.
What if i am CoVered by a union ColleCtiVe agreement?
The minimum standards established by the Codes apply to collective agreements. A collective agreement provides group benefits
for all employees who are employed under that collective Agreement. Generally, a collective agreement will provide more benefits
than the basic benefits under the Codes. It is the duty of the Trade Union to represent all employees equally with respect to their
entitlements. If you have concerns you should contact your Union representative as a first step. If your concerns are not dealt
with through the Union, you should contact the Workers’ Advocate for the Province of Alberta whose number will be found in
the Blue Pages of the Telephone Directory.
is there a minimum Wage?
Yes. The provincial government regularly sets a minimum wage which must 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 him or her to pay you those lower wages. Without the permit,
your employer has no right to pay you less than minimum wage. Effective September 1, 2011, the minimum wage is $9.40 per
hour for most employees.
should i reCeiVe payment for oVertime?
The hours you work beyond eight hours a day or forty-four hours a week, whichever is greater, are considered overtime hours.
Overtime hours are paid by the employer at a rate of one-and-a-half times your regular hourly rate. You may receive time off
work instead of overtime pay if you and your employer agree to this arrangement in writing. The time off will be equal to the
number of hours of overtime that you worked. Your employer must give you the time off instead of overtime within three months
of the end of the pay period when you earned the overtime. If you do not take the time off before the end of three months, your
employer must give you overtime pay at the end of your next pay period.
Women and the Law 7th Edition, 2011 69
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, and all deductions for the pay period that the statement covers.
am i entitled to rest periods?
You cannot be required to work more than twelve 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. The Code does not provide for coffee breaks. 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.
What about VaCations and VaCation pay?
After one year of employment, you are entitled to a minimum of two weeks of vacation each year. After five consecutive years
of employment, you are entitled to a minimum of three weeks vacation each year.
You are also entitled to receive vacation pay. Your employer must provide your vacation pay no later than the pay day after
you take your vacation. Hourly paid employees are entitled to four percent of their regular wages for vacation pay, and 6% after
five consecutive years.
You are entitled to take your annual vacation in one unbroken period (in other words, one or two full weeks). However, you
can request to take your vacation in periods of not less than one day at a time, by providing a written request to your employer.
Your employer has final approval of the dates when your annual vacation can be taken.
What other holidays am i 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.
With some exceptions, 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, your employer will pay your regular wage for that day and you are entitled to another day off at your
regular wage. If a General Holiday occurs during your vacation period, you are entitled to receive an extra day of paid holiday.
If you are employed in the construction industry or as a camp counsellor, the General Holiday pay regulations may be dif-
ferent. Check with your local Employment Standards Branch for more information.
termination of employment
The Code sets out minimum notice requirements for both employers and employees. If you resign from your employment, you
are required to give your employer at least one week’s notice if you were employed for at least three months. You are required to
give your employer at least two-weeks’ notice if you were employed for two years or more. If your employer does not schedule you
to work during the notice period, you are still entitled to receive the wages that you would have earned over the notice period.
In most cases, if your employer terminates your employment, your employer must give you written notice of termination
based on the number of years that you have worked. The notice periods required under the Code are:
• One week if employed more than three months but less than two years
• Two weeks if employed two years but less than four years
• Four weeks if employed four years but less than six years
• Five weeks if employed six years but less than eight years
• Six weeks if employed eight years but less than ten years
• Eight weeks if employed over ten years
Your employer cannot reduce your wages during the notice period.
Your employer may give you severance pay instead of notice of termination. Your severance pay must be equal to the wages
70 Women and the Law 7th Edition, 2011
that you would have earned over the notice period. Your employer is not required to explain why your employment was terminated.
Your employer is not required to give you notice under certain circumstances, including: if you have worked for less than
three months, if there was a contract specifying the end of the employment, if you are employed in certain kinds of construc-
tion 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 its control or, if your employer has “just cause.”
If your employment is terminated, you also have legal rights through the Court system. Your employer is required to give
you reasonable notice of termination unless it has “just cause.” The length of time that is considered reasonable depends on how
long you have worked for the employer, your position, and your age. In the case of a long-term employee, the Court may set a
notice period of twelve to eighteen months.
“Just cause” means that the employer had a valid reason to terminate your employment, based on serious misconduct. Conduct
that would be considered “just cause” for termination includes theft, fraud, dishonesty, and unexplained absences.
The Code prohibits your employer from terminating your employment while you are on maternity/parental leave, or because
your wages have been garnished by one of your creditors. Also, you cannot be dismissed from your job based on 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?
You can receive unemployment benefits (or EI benefits) if you have paid into an EI account and are unemployed. There are four
types of benefits: regular, maternity/parental, sickness, and compassionate care benefits. Regular benefits are available to provide
temporary financial assistance to you when you become unemployed.
You can qualify for regular benefits if: (1) you lost your employment through no fault of your own, (2) you meet the minimum
number of weeks of employment prior to applying for EI (the “qualifying period”), and (3) you are willing and able to work
each day. For most workers, the qualifying period is between 420 to 700 hours. For most employees in Alberta, the qualifying
rate is 700 hours.
EI benefits go as high as to 55% of your weekly earnings, to a maximum of $468 per week. Income tax will be deducted
from these earnings. You are entitled to receive EI benefits for fourteen to forty-five weeks, depending on the regional rate of
unemployment where you live, and how long you worked prior to applying for EI benefits.
You can earn up to $50 per week while receiving EI benefits. Any earnings will be deducted from your EI benefits. You
should apply for EI benefits as soon as you stop working. If you delay in filing your application, you may lose some of the benefits
that you are entitled to receive. Contact the Canada Employment Insurance Commission for more information.
maternity and parental leaVe and benefits
Begin planning your leave: (1) as soon as you learn that you are pregnant or (2) initiate the process of adopting a child and you
think that you want to return to your present job after the baby is born/adopted. 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.
Maternity leave in Alberta consists of fifteen weeks’ unpaid leave under the Code, at least six weeks of which must occur
after the baby is born. An additional thirty-seven weeks’ of unpaid parental leave is permitted under the Code. The thirty-seven
weeks’ of parental leave may be taken by the mother or the father, or divided between the two parents. Although maternity and
parental leave are unpaid, certain benefits are available under the Employment Insurance (EI) Act of Canada (see below for
Can i lose my Job if i beCome pregnant or adopt a Child?
No. If you have worked twelve consecutive months for your employer, the Code provides that you are entitled to maternity leave
and parental leave whether or not your employer consents to it. This benefit 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.
Women and the Law 7th Edition, 2011 71
What if there is no Job to return to?
If your employer has shut down during the time when you are on maternity leave (but starts operations again within twelve
months of the end of your leave) you are protected. In this case, your employer is required to reinstate you in your former posi-
tion or provide you with alternative work if this is not possible. If operations do not reopen, you are entitled to the severance
pay provided for under the Employment Standards Code. You should consult a lawyer or the Employment Standards Office if
Can i ColleCt employment insuranCe While i am on maternity/parental leaVe?
Yes. To be eligible for maternity, parental, or sickness benefits under EI you must show that:
1. your regular weekly earnings have been decreased by more than forty percent;
2. and you have accumulated 600 insured hours in the last fifty-two weeks or since your last claim, (this
period is the qualifying period).
The qualifying period is the shorter of: the fifty-two-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 fifty-two-week period.
If you meet the requirements and you apply at the right time, you are eligible for fifteen weeks of maternity benefits (for a
total of seventeen weeks’ benefit period, of which two weeks are a waiting period without benefits). As well, an additional thirty-
five weeks of parental benefits that are available to either the mother or the father of the baby or benefits can be split between
them. This means that you could qualify for a maximum of fifty weeks of employment benefits. Parental benefits are normally
only available within the first fifty-two weeks following the child’s birth, in certain circumstances, such as hospitalization of the
baby, these benefits may be extended up to a maximum of 104 weeks.
In some instances, the two-week waiting period may be waived or deferred. For example: if you receive paid sick leave
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 need be served. For example, if a two-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 that the second parent subsequently claims regular or sickness benefits after parental benefits, the two-week waiting
period would then need to be served.
If you receive group insurance payments, you can serve the two-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 four weeks from the time your earnings have decreased by
more than forty percent may cause loss of benefits.
Try to arrange both your maternity leave and Employment Insurance benefits to start at the same time. The maximum
amount of Employment Insurance benefits payable is fifty-two weeks. 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 sixty-five weeks of combined sickness, maternity, and parental benefits instead of the
normal combined maximum of fifty 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 fifteen weeks of sickness benefits or less than thirty-five
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 twenty-five percent of your weekly benefits,
whichever is higher.
hoW Can i ColleCt employment insuranCe benefits if i lose my Job?
Employment Insurance is provided by a Federal Government program. In order to qualify you must meet two criteria. First, you
must have suffered an “interruption of earnings.” Second, you must have worked a certain number of insurable hours of employ-
ment in a period preceding your claim. The number of hours required varies from province to province. In provinces where the
unemployment rate is high, fewer qualifying hours are required.
You can collect Employment benefits for a maximum of fifty-two weeks. There are exceptions for work-sharing benefits
72 Women and the Law 7th Edition, 2011
and maternity or parental benefits.
You should file your claim for employment benefits as soon as your job ends. A delay in filing your claim will result in a
delay of payment of benefits. Be sure to call your local Canada Employment Insurance office. The number can be found in the
Blue Pages of the Telephone Directory.
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 for employers who are willing to hire and train
an employee who has been out of the job market for a certain length of time. The employer 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 point to a prospective employer. Contact a Federal HRDC Center or a Provincial Income & Employment Centre for
The Alberta Ministry of Immigration and Education has also developed a Learner Income Support program for individuals
who are unemployed and wish to return to school for full-time or part-time studies. The funding covers the cost of tuition, books,
supplies, and a living allowance. To qualify, you must reside in Alberta, demonstrate financial need, and enroll in an approved
program of study. In addition, you must have a clear, definable and realistic employment goal. For more information, contact
your local provincial Income and Employment Centre.
oCCupational health and safety
What is oCCupational health and safety?
Alberta has an Occupational Health and Safety Act. Occupational health and safety provides minimum standards through pro-
vincial 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. However, it should be noted that
the Occupational Health and Safety Act does not apply to workers such as domestic workers (including housekeepers or nannies),
federal government employees, farmers, and workers in federally regulated industries such as banking, interprovincial transpor-
tation, and telecommunication. Hazards that may impact a person’s reproductive system as a result of chemical exposure 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. 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,
Women and the Law 7th Edition, 2011 73
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 oc-
cupation 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 em-
ployer 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.
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 reasonable 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, turning 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 you 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.
74 Women and the Law 7th Edition, 2011
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’ Compensa-
tion 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 be 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.
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.
hoW to set up your oWn business
You have skill and talent and are ready to start your own business. Congratulations! Depending on your needs, sources of fi-
nancing and type of business, there are several options for structure that you can choose. The most common of these are briefly
Note: this section is based on the current law in Alberta; laws in other provinces and countries may be different. It is given as
general information only and does not constitute legal advice. You should always consult your own professional advisors.
Owning a proprietorship or being a sole proprietor is just a way of saying you alone are the business. This is the simplest way
to start a business. If you want to use a name other than your own, you can register it as a trade name, but this is not a legal
requirement. However, if you use a name that is too similar to an existing name, and the owner has a registered trade name and
objects to your use, you may have to change your name. This can be costly in terms of redoing business cards, stationery, signs,
website, etc, so it is best to do your own research before committing to a business name.
Some of the advantages of a sole proprietorship are the simplicity; low cost, and—as a general rule—your personal income
and expenses from all sources are combined and offset against each other for tax purposes. This means that if you continue to
work at another job while your business gets going, the expenses of your business are deductions against all of your income and
not just income from your new business.
The disadvantage of a sole proprietorship is mainly that you will be personally liable for all debts and claims against your
business, and failure can mean a loss of your other assets.
Corporations must be created through Alberta Corporate Registry, and are an entity separate from you personally. Corporations
have shareholders, who are the owners of the business, directors, who are legally responsible for the business, and officers who
run the business on a day-to-day basis. You can be the sole shareholder, director, and officer of your corporation. In that case, it
is similar to being a sole proprietor with a couple of important differences. Your corporation (or company) has a few ongoing
filing requirements with Alberta Corporate Registry and must also file a separate corporate income tax return. As a shareholder
of a corporation you are not personally liable for its debts. You have some personal liability as a director; mainly to the Canada
Women and the Law 7th Edition, 2011 75
Revenue Agency for corporate income tax, GST, employee withholdings, and employer contributions etc. If your business is
successful enough that you can leave funds in the business, there can be some tax advantages. Also note that if your business
is to be a consultant to other businesses, most potential clients (if they are knowledgeable) will insist that you be a corporation
for their own protection.
Forming a corporation may be the structure of choice for you, but please beware: there are pitfalls when two people start a
50/50 business as a company, because if you have a disagreement the corporation can be deadlocked and not able to do anything,
often resulting in the necessity to go to court. This can be avoided with good planning and a document called a unanimous
shareholders agreement, but the time to do this is at the beginning! Once you have a disagreement, it is too late. This other person
may be your best friend or life partner, but being in business together is different—please don’t think that this can’t happen to
you and you will always avoid disagreements.
So far there has been no discussion of how you will finance your business until it becomes profitable. If you have your own
resources this is wonderful. If you do not, or at least not enough, the usual sources of financing are loans and lines of credit
or private investors. With respect to credit from financial institutions like banks or credit unions, you should know that it is
usual for them to require you (and your partner, if any) to personally guarantee the loan. This removes a primary reason for
incorporating. Another source of financing is to sell shares in your company, but there are pitfalls for the unwary and unadvised.
Even a so-called private company is governed by the Alberta Securities Act, which has strict rules on to whom companies can
sell shares, and what you can tell potential investors about the business—even if they are your family and close friends. Also,
you are admitting new owners into your business. Note that in addition to owning shares of the company, you, your partner and
investors can loan money to the company in addition to or instead of purchasing shares. But the same restrictions on selling
shares can also apply to private lenders.
A general partnership is similar to a sole proprietorship, but involves two or more people. No government filing is required to
create a general partnership, and the same rules apply if you want to reserve a trade name for it. Each partner has joint and sev-
eral liability for the debts of the partnership. This means that even if you and your partner agree to be 50/50, this does not bind
creditors who, in case of non-payment, can go after either of you and your personal assets for 100% of the debt. A partnership
agreement to govern the relationship between general partners is highly recommended.
A limited partnership is more similar to a corporation than a proprietorship. A limited partnership must be registered with Al-
berta Corporate Registry and have a limited partnership agreement, and can have one or more general partners and one or more
limited partners. The general partners are similar to the directors of a corporation and run the partnership business, but unlike
directors they are each still personally liable for all of the partnerships debts. The limited partners are similar to the shareholders
of a company, although unlike shareholders they may agree in the limited partnership agreement to continue to invest money in
the partnership on an ongoing basis. But like shareholders, they have no personal liability to the partnership’s creditors, except
to the extent that they owe contributions to the partnership. And the Securities Act rules also apply to limited partners.
Whatever structure you select, your business will need to form relationships with a banker, accountant, and lawyer. Shop around
and ask other business owners about their relationships. Which bank you choose just to have your business accounts can affect
your ability to later get a commercial loan. There is a wide variance among the chartered bank and even branches of the same
bank, as to their willingness to work with small business. And don’t forget credit unions and similar associations.
Interview accountants and lawyers to find someone you feel comfortable with. Have a frank discussion of fees and other
charges by the firm such as per-page charges for faxing, photocopying, typing, etc. If possible try to negotiate flat fees rather
than hourly rates for normal day-to-day assistance. Look for advisors who have business sense as well as expertise in their field
and who will understand your problems. Also look for a level of experience that is extensive enough to service your needs, but
not someone with so much high-level experience that the fees will be too high.
As well as talking to small business owners where you are located, look for mentors in the same type of business. There
76 Women and the Law 7th Edition, 2011
are a number of associations of different types of small business, networking groups, and professional associations that can be
a source of good advice.
business numbers and liCenses
Even if your structure does not have an income tax reporting requirement, you will need to set your business up with a GST
number, even if you think your initial income will be below the minimum threshold. Check with your municipality about whether
you will require a business license. Depending on your type of business, you may also need health inspections, building inspec-
tions, liquor licenses, etc. If you are planning an office in your home, check the municipal bylaws and any restrictive covenants
in your neighbourhood to make sure it will be permitted. Your legal and accounting advisors can advise you as to what you will
need, and most municipal clerks are very helpful too.
If you lease premises for your business, most leases will require you to carry certain minimum limits of fire and general liability
insurance. Even if not required, speak with an independent agent and seriously consider getting coverage.
Depending on your budget and type of business, there are many ways to advertise: on-line, newspapers, local neighbourhood
papers, flyers, signs, etc. What works best for your area and type of business are good questions for your advisors and mentors.
Whatever forms you use, remember that pleasant, efficient, and ethical service are the keys to one of the most effective means
of advertising: word of mouth from satisfied customers.
Women and the Law 7th Edition, 2011 77
78 Women and the Law 7th Edition, 2011
ChApTEr 7: WOmEn And mAriTAL sTATus
In Alberta, marriage is recognized as an equal partnership between two persons, resulting in duties and responsibilities to each
other. From the very moment you and your partner become married, 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 marriage has been legal across Canada since 2005 and the rules that apply to same-sex marriages upon separation or
divorce are in most cases the same to those of married couples of the opposite sex (see LGBT rights section for more information).
To have a valid marriage in Alberta, you must comply with certain rules. In order to enter a legal marriage, the parties must be
at least eighteen years old (or sixteen with a parent’s consent), must be outside the prohibited degrees of relationship (you may
not marry close relatives, whether by whole blood, half blood, or by adoption), 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 sixteen 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 from any registry agent in Alberta including
Vital Statistics and Alberta Motor Association offices.
ending your marriage
In Canada, either spouse can choose to end a marriage, whether or not the other spouse agrees. There are several different ways
to legally end a marriage; they include judicial separation, divorce, or annulment. Each way of ending a marriage has different
legal requirements. Decisions on the division of property, custody of the children, visiting rights, and child and spousal sup-
port 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 (although this is not required to get a divorce), to apply for a divorce,
annulment, or judicial separation and to consult a lawyer about: custody, access, financial support, and matrimonial property
issues, and in some cases, to have a lawyer settle these matters with you.
Women and the Law 7th Edition, 2011 79
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. A court can enforce support payments if necessary. Unless there is a written agreement
or court order for support, money paid by one spouse to the other is not tax deductible and the recipient of the money does not
have to report it as income. Child support is never tax deductible by the paying parent, or included as income by the receiving
parent it is only spousal support where this arrangement is possible.
A formal Separation Agreement allows you and your spouse or partner 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.
You must use a different lawyer than the one your spouse uses. You cannot use two lawyers in the same law office either;
they must be two completely different lawyers who work for two completely different firms. 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 future options. Be aware of these and discuss them with your lawyer.
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.
The present federal Divorce Act has been in force in Canada since June 1985. 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 fac-
tor 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.
Due to the increasing mobility of society, under the Act, the rules with regard to residency requirements have been simplified,
and only require 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
80 Women and the Law 7th Edition, 2011
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. Con-
nivance 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 encour-
ages the reconciliation of spouses and thus allows the spouses to cohabit again after separating for up to ninety 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 fur-
ther 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).
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 thirty days unless one of the parties appeals. Either party can then obtain a certified copy from the Court of the Certificate
of Divorce as proof that the divorce is final.
Uncontested divorce packages are available from the Queens Printer (Edmonton—5th Floor, Park Plaza, 10611-98 Avenue,
Edmonton. Phone 780-427-4952 (elsewhere in Alberta, phone 310-0000) or at local stationery stores and registries. Independent
Women and the Law 7th Edition, 2011 81
legal advice should be obtained in all but the simplest of situations. You must fill out the documents yourself and you are respon-
sible for having papers typed and photocopied. You must also file all the documents at the Court House with the Clerk of the
Court. You may use a process server to serve all documents on the other party. The minimum cost of any uncontested divorce is
approximately $210, exclusive of any legal fees, and a Certificate of Divorce takes approximately three to four months to obtain.
Divorce and/or judicial separation means there was a valid marriage, whereas an annulment can occur when there is a defect
or problem with the marriage itself that exists at the time of the marriage. Generally, children of an annulled marriage are still
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 par-
ties 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 or when the
marriage has not been consummated. Legal advice will be necessary to determine whether your marriage meets these or other
grounds for annulment.
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 relationship for whom there is a legal obligation to provide.
There are two major areas of concern that arise with remarriages and pre-existing wills. 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 next-of-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 mainte-
nance 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.
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 into a
prenuptial agreement, or marriage contract. Each of you can then set up your own rules regarding the distribution of matri-
monial 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 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.)
82 Women and the Law 7th Edition, 2011
In Alberta a common-law relationship is one where either a same-sex couple or opposite-sex couple lives together without be-
ing married. The law with regard to common-law relationships in Alberta has changed with the introduction of the concept of
adult interdependent relationships.
The law is set out in the Adult Interdependent Relationships Act (AIRA). AIRA applies if you have signed an Adult Inter-
dependent Partnership Agreement; if you have lived together with your partner in an interdependent relationship for three or
more years; or if you live together and have a child together. If AIRA applies you may have some rights under the Family Law
Act. This may include an entitlement to spousal support and/or division of property in the event that you and your partner
break up. There is other legislation, both federal and provincial that may also impact your rights. This includes the Employment
Pension Plans Act in Alberta and the federal Income Tax Act, both of which apply to common-law relationships where you have
lived with a person in a conjugal relationship for one year or longer. Contact your lawyer, Legal Guidance Clinic, or Women’s
Center Clinic for further information.
the family laW aCt (alberta)
The relatively new Family Law Act, proclaimed in force on October 1, 2005, replaces the Domestic Relations Act, the Domestic
Relations Amendment Act, the Maintenance Order Act, the Parentage and Maintenance Act, and parts of the Provincial Court Act
and the Child, Youth and Family Enhancement Act.
This Act deals with adult interdependent (common-law) relationships, parentage, guardianship, surrogacy, time with a child
(access). It does not deal with divorce, matrimonial or family property, or child protection matters.
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 many provincial statutes.
For example, the Family Law 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.
Two people are considered adult interdependent partners if:
• they have made a legal agreement to become adult interdependent partners (which means that the two
persons share one another’s lives, are emotionally committed to one another and function as an economic
and domestic unit);
• they have lived together for a continuous period of three years or more; or
• they have lived together for less than three years but are in a relationship of some permanence, and there
is a child of the relationship by either birth or adoption.
People who are related to each other by blood or adoption must complete an 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);
• 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;
• 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 agree-
ment, the degree to which they hold themselves out to others as a couple, or if they have made provision
for each other in a will.
Women and the Law 7th Edition, 2011 83
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
The court is becoming more inclined to find ways to divide property acquired by either party during a common-law rela-
tionship 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 at the court’s discretion under the Matrimonial Property Act, a judge may give one spouse exclusive
possession of the couple’s home and household goods (whatever is inside the home). 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 or adult interdependent partner 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 or adult interdependent partner
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 entered into an agreement concerning the ownership in, or division of, property upon the relationship coming
to an end.
The common-law spouse or adult interdependent partner 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 long
period of time, each contributing to the relationship (financially or in some other way) and the relationship breaks down, an
interest in the property accumulated during the relationship may be awarded to the common-law spouse or adult interdependent
partner who does not hold title to the property, if the spouse owning the property would be benefited in a manner considered
to be unfair as a result of the other common-law spouse’s work and effort over the years.
A third way that a common-law spouse or adult interdependent partner can demonstrate her property rights is through 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 or as an adult interdependent partner, you should consider obtaining a co-
habitation agreement which sets out what happens with regard to financial support for the children, custody and access, and
property division, should you separate. A cohabitation agreement is usually enforceable under ordinary contract law, and at least
provides some evidence of you and your partner’s intentions. You are now able to enter into an adult interdependent relation-
ship agreement with your partner, pursuant to the AIRA. It is a good idea to obtain advice from a lawyer before entering into
such an agreement.
In Alberta, the Insurance Act requires that the person for whose benefit a life insurance policy is taken out must have an insur-
able interest in the life of the insured. The Act now lists spouse and adult interdependent partners (among others) as having an
insured interest under the primary person’s life insurance policy. However, as an adult interdependent partner you should ensure
that you are specifically named in the insurance policy because if the policy is payable to “wife” then any legal spouse would
collect the proceeds.
Common-law relationships may present problems with joint credit arrangements. Treat financial agreements between you and
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.
84 Women and the Law 7th Edition, 2011
Common law spouses are eligible to receive a share of their partner’s pension benefit when the relationship ends or their part-
ner dies. Federal laws, governing federal pension plans, recognize a common-law relationship provided you have lived together
continuously for one year (see Pension section for more information).
disputes betWeen the mother and father of Children of a Common-laW relationship
The guardian of a child is the adult who is legally responsible to take care of the child. Usually, the guardian is the parent. Where
a mother and father are not married when a child is born, the mother and father of a child are both considered guardians of
the child if:
• The mother and father marry each other after the birth of the child.
• The mother and father live together for twelve months in a row and during this time the child is born.
• The mother and father were each other’s common-law or adult interdependent partner at the time of the
birth or became each other’s partner after the birth of the child.
Guardians are responsible for making all significant decisions affecting the child and have a right to sufficient time with
the child. Guardians have a duty to cooperate with each other in matters that affect the child. If guardians cannot agree, they
can apply to Court for a Parenting Order that will spell out how they are to exercise their rights and responsibilities.
As long as there is no Court order to the contrary, parental rights and responsibilities are to be exercised jointly by the mother
and father who are both guardians. It is assumed that the two parents will reach an agreement on major decisions affecting their
child. Until there is a Parenting Order, neither parent can deny the other parent’s right to see the child. A Parenting Order
helps separated parents share their responsibilities and define their parenting plan in the best interests of the child. The child’s
own best interests are the primary legal concern in determining how responsibilities and time with the child should be divided.
The biological father of a child must pay child support for his children, regardless of whether he has any rights in connection
with the child or if he spends time with the child. If a biological father refuses to pay child support, you can apply to the court
for an order declaring paternity and an order for maintenance for the children under the Family Law Act.
The Alberta Maintenance Enforcement Program ensures that individuals meet their obligations to pay child support under
the terms of their court orders and certain agreements. Once an order or agreement has been registered with the Program,
maintenance payments that the payor would have normally paid directly to the recipient are sent to Alberta Maintenance En-
forcement. The Program then forwards the payment to the recipient.
The Child Support Guidelines ensure a base amount for child support depending upon the income of the person who is
paying and the number of children involved. On top of the guideline amount, the payor may also have to pay a portion of any
special expenses. These could include things like: child care; medical and dental premiums; health related expenses that exceed
$100 each year; extraordinary school expenses; post-secondary education; and extra-curricular activities.
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
Living common law will have an impact on entitlement to certain social welfare payments. If you and your common-law spouse
or adult interdependent partner are living together in a marriage-like situation, you may be treated as a married couple which
Women and the Law 7th Edition, 2011 85
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.
If you and your children (who are the biological children of the deceased) are not provided for adequately in the will of your
common-law spouse or adult interdependent partner, you can make a claim for assistance from the estate under the Intestate
Succession Act and the Dependent’s Relief Act.
Where an individual dies without a valid will or where their will does not distribute all of their assets, the Intestate Succession
Act determines the distribution of the assets of the estate.
If the deceased leaves a spouse or an adult interdependent partner and child, the spouse or adult interdependent partner takes
the entire estate. If there is both a spouse and an adult interdependent partner, the individual who was living with the deceased
at the date of death receives the estate and the other party receives nothing. If the deceased was survived by children as well as
a spouse or an adult interdependent partner, the estate is distributed according to a formula set out in the Act.
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 relation-
ship as defined by the Adult Interdependent Relationship Act.
For tax purposes, Revenue Canada treats common-law relationships as though the parties were married.
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.
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 ordin-
arily 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
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 in accordance with 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.
86 Women and the Law 7th Edition, 2011
diVision of property by Court order
The basic principle of the Matrimonial Property Act is that there is a presumption that matrimonial property will be distributed
equally between the spouses, unless otherwise decided by the court. This presumption of equal sharing 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.
To divide the property, the court will start by classifying each item into one of three categories:
• Property that will not be divided, meaning it is exempt from distribution;
Property that will be divided fairly (but not necessarily equally);
• Property that will be divided equally.
Property which is exempt from distribution, and thus not divisible between you and your spouse, includes: any property
individually owned by either of you before your marriage, property received after the marriage as a gift to either of you, a dam-
ages award, or an inheritance. To remain exempt, property must be traceable and kept in one person’s name and not be put into
joint property. 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 thirteen 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 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.
Women and the Law 7th Edition, 2011 87
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.
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 separa-
tion, however, the spouse must apply and meet the necessary requirements.
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 he or 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. In the past, court-ordered support payments went too frequently unpaid; 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. 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 may include some common-law relationships and same-sex relationships by way of the Adult Interde-
pendent 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
88 Women and the Law 7th Edition, 2011
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.
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 things such as the circumstances of the marriage or relationship (length of time the parties cohab-
ited, 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 truly guidelines
only and are not binding on the courts. 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 spousal support for married parties; the Family Law Act includes support for some common-
law relationships (including parties of the same-sex), provided that they meet the criteria necessary in the Adult Interdependent
Support payments can be paid in lump sum or in weekly, monthly, or yearly payments. Periodic payments ordered by the
court can usually 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 1, 1997, the federal government amended the Divorce Act and introduced the Federal Child Support Guidelines. All
applications for child support, or to vary child support, and all written agreements for child support made on or after May 1,
1997 fall under the Federal Child Support Guidelines. As of May 1, 1997, there are no tax consequences to the payor or recipi-
ent of Child Support payments. Agreements or Court Orders made before May 1, 1997 are generally not affected by the new
income tax rules. Child support can be requested under the Divorce Act for married parents and under the Family Law Act for
Support determined under the Guidelines has two components: a table amount and special expenses (often referred to as
section 7 expenses). The table amount is found in the tables of the guidelines and essentially covers food, shelter and clothing.
This table amount varies from province to province depending on the tax rate of each province. The special expenses amount is
for expenses related to the children in addition to the table amount for food, shelter, and clothing.
In order to determine the amount of child support or table amount to be paid, the total/gross income of the payor parent
must be determined. The recipient parent can request financial disclosure from the payor parent in order to determine what
their total/gross income is and then the Federal Child Support Guideline table is consulted to see what the appropriate monthly
amount is for the payor’s total/gross income for the number of children in the recipient’s care.
The next step is to determine what will be included in the special or extraordinary expenses. For this determination, the
total/gross income of both parents is required as parents share these expenses proportionate to their income. The payor must
then pay their proportion of these expenses to the recipient parent, in addition to the “table amount” of child support.
There are six areas of expenses:
• 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
• Extraordinary Educational expenses;
• Expenses for Post secondary education;
• Extraordinary Expenses for Extracurricular activities.
The extraordinary 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.
Women and the Law 7th Edition, 2011 89
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 special expenses and even the table amount of support are sometimes complicated. There are often
many other factors that may need to be included in the calculation as well, such as adult children, shared custody, hardship and
determination of income. The Family Law Information Centre may be able to help you. Their services are free of charge and
their office is located at the Calgary Courts Centre, 601-5 Street SW, Calgary. Their phone number is 403-297-6981.
non-payment of support
If your spouse is unwilling to pay support, and you get a court order for 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.
Change of name
It is your common-law right to call yourself by any name you choose, as long as it is not for fraudulent purposes. You may do
this by simply using the name you choose. There is often resistance to this by some institutions and consequently it is best to
start by changing your name on your driver’s license.
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 eighteen 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 twelve years of age or older. The consent of the father, if he is a guardian of the
child, is required if the child is under the age of eighteen.
using your husband’s surname
It is not legally required that you use your husband’s surname upon marriage. If a woman chooses to use her husband’s last name,
this is not considered a legal change of name. 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 license. Then send a signed document to all profession-
als 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 (last name) 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 applies 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 twelve years of age or older and do not consent to
A divorced woman must obtain the consent of her former husband if she wishes to change the surname of their children,
90 Women and the Law 7th Edition, 2011
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 twelve years and objects.
proCedure for Changing your name
Visit or write to the Division of Vital Statistics office or attend an Alberta Registry Agent 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 a copy of your fingerprints as obtained by a law enforcement agency (fingerprints are not required
for children) 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 unless
the Director of Vital Statistics or the Court of Queen’s Bench dispenses with this requirement. 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 license, Social Insurance Number, passport,
etc., changed to your new name.
Women and the Law 7th Edition, 2011 91
92 Women and the Law 7th Edition, 2011
ChApTEr 8: WOmEn And ChiLdrEn
guardianship, parenting, Custody, and aCCess
There is a difference, in law, between a parent and a guardian. You can be a parent without being a guardian and you can be
a guardian without being a parent. A finding that you are a parent of a child usually means you have obligations towards that
child (e.g. to pay child support). A finding that you are a guardian to a child means that you will be given some powers with
respect to that child.
Who is a parent?
There is rarely any question as to whether or not the mother of a child is the parent, rather the question occasionally arises as
to whether or not a male person is the parent.
Rather than DNA testing every child born, the Alberta Family Law Act sets out situations where the male person will be
presumed to be the parent. These are:
• If he was married to the mother when the child was born;
• If he was married to the mother but they divorced less than 300 days before the child was born;
• If they married after the child was born, and he has acknowledged being the father;
• If he lived with the mother for a twelve month period during which the child was born and acknowledged
being the father;
• If he signed the necessary paperwork to have himself registered as the father on the child’s birth certificate.
If two or more males are presumed to be the father by way of the tests set out above, then there is no presumption made
about any of them.
parental rights and responsibilities
A person who is under eighteen 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 person-
ally and for the child’s property.
Parental Support for the Necessaries of Life
Section 215 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 sixteen or to a child older
than sixteen who remains under their charge and who is unable to provide her or himself with the necessaries of life.
The Family Law Act says that a parent or a person who has stood in the place of a parent (e.g. a step-parent) is responsible
for the support of the child. When parents do not live together, the court can order a parent to pay support.
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.
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
Women and the Law 7th Edition, 2011 93
the child. “Child” means anyone who is, or who appears to be, under the age of eighteen. 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.
Sections 282 and 283 deal with abduction of a child by one parent from the other. It is a criminal offence to take a child from
the other parent in breach of a custody or parenting order. Even if there is no custody or parenting order, a charge of abduction
can still be laid if the child is removed from the lawful care of the other parent. This charge will only be laid, however, with the
consent of the Attorney General.
Proper Care of the Child
Children’s Services can become involved with a family if the children are found to experience abuse or neglect, such as being
left alone, being physically, sexually, or emotionally injured or not being provided the necessary food, clothing, or medical care.
The degree of intervention by Children’s Services depends on the seriousness of the case and the cooperation of the parents.
In some cases, a worker will come into the home to help the parents learn about proper care. In other cases the child will be
removed from the home, and in extreme cases, Children’s Services will apply for a Permanent Guardianship Order, which will
allow the child to be adopted by another family.
Who is a guardian?
Each province has their own laws about whether or not a parent is also a guardian of a child. In Alberta, the mother is always
a guardian. The father of the child may be a guardian if he acknowledges that he is the father of the child; and he demonstrates
an intention to assume responsibility for the child within one year of finding out that the mother is pregnant or that the child
has been born.
The father can demonstrate an intention to assume responsibility by:
• Being married to or living with the mother when the child is born or after the child is born;
• Being married to the mother but divorced less than 300 days before the child is born;
• Voluntarily providing or offering to provide reasonable support of some kind (may be direct or indirect,
financial or other support);
• Or in some other way that the court accepts.
If the pregnancy ocurred from a sexual assault, the person who perpetrated the assault is not a guardian, even if they dem-
onstrate the required intention.
A third party who has taken on the care of a child can apply to the court to be a guardian. It is possible for a child to have
more than two guardians.
What does it mean to be a guardian?
Under Alberta law, a guardian has certain entitlements, powers and responsibilities.
A guardian is entitled to:
• Be involved in making significant decisions about the child;
• Have enough time with the child to exercise the powers and responsibilities.
A guardian is responsible to:
• Nurture the child’s physical, psychological, and emotional development;
• Ensure the child has medical care, food, clothing, and shelter.
A guardian has the power to:
• Make day-to-day decisions about the child;
• Decide where the child will live;
• Make decisions about education and extracurricular activities;
• Make decisions about the child’s cultural, linguistic, religious and spiritual upbringing;
• Decide who the child will live with or associate with;
• Decide if the child will work, and if so, what kind of work;
• Consent to medical care;
94 Women and the Law 7th Edition, 2011
• Provide consents when required by law;
• Receive and to respond to any notice required by law to be given to a guardian;
• Deal with legal matters on behalf of the child;
• Appoint someone to act on the guardian’s behalf in an emergency situation, when the guardian is ill or
• Receive health or educational information about the child.
The guardians’ entitlements, responsibilities, and powers continue until the child reaches the age of eighteen, unless the child
marries or enters into an Adult Interdependent Relationship before they reach age eighteen.
When both parents are guardians, they must provide information to each other about the child and cooperate with each other.
When parents separate, they must decide how to share or divide up the decision making powers and the time with the
child. If they cannot agree, the court will decide for them.
Custody and aCCess
If parents are getting a divorce, they will usually use the terms custody and access to describe the arrangements that they make
for their children. The term custody can refer both to decision making power and living arrangements.
When parents have joint custody, they will continue to make decisions about the child together. However, in many cases,
the children will live primarily with one of the parents, and the other parent will have access. The agreement or court order may
say that one parent has primary residence or primary care and control of the child. Married parents automatically have joint
custody, but they can agree or the court can order a different custody arrangement.
When one parent has sole custody, that parent will make all of the decisions about the child. The other parent will still
have access to the child, but will not participate in the decision making process. However, in cases of sole custody, the parties
may still agree, or the court may order that the non-custodial parent must be informed of decisions, or is allowed to participate
in some decisions. For example, the parties may agree that the parent with custody will not move away from the city without
the other parent’s consent.
In some cases, the term custody can refer to the time with the children. For example, when parents have shared custody, the
children will divide their time, more or less equally between each parent’s home. The term split custody refers to the case when
some of the children live primarily with one parent and the other children live primarily with the other parent.
Access means the right to have time with the child.
Parents who are not married or who have not yet filed for divorce fall under the Family Law Act and will use the term parenting
to describe the arrangements they make for their children.
A parenting order or agreement will often list the types of decisions that may be made by the parents, and for each type of
decision will say whether that decision is made by the mother, by the father, or by both parents.
The order or agreement will then go on to set out how the time with the children will be shared between the parents. The
term shared parenting or split parenting may be used to describe similar cases to shared custody or split custody, as set out above.
In a case when the mother is a guardian of the child, but the father is not, the mother will make all of the decisions about the
child. However, the parents may agree, or the court may order, that the father is entitled to spend time with the child. In this
case, the father’s time with the child is called contact. Contact may include involvement with the child other than face to face
visits. For example, a contact order may set out that the father is allowed to telephone or e mail the child, or to interact with the
child on a social network. Contact applications can also be made by third parties—for example, grandparents or step parents.
Contact applications can also be made by third parties—for example, grandparents or step-parents.
settling Custody or parenting
Whether parents use the terms custody or parenting, the types of decisions that must be made are the same—how decisions
about the children will be made and how the time with the children will be divided between the parents.
If the parents can work together, the agreement or order may say that the children will live primarily with one parent and the
Women and the Law 7th Edition, 2011 95
other parent has reasonable access (or reasonable parenting time). This means the access or parenting time takes place whenever
the parents agree. In other cases, the agreement or order will be more specific, setting out the days and times that the access or
parenting time will take place. This is often called specified access.
Even in cases when parents work together well, they often find it helpful to specify how the children’s time will be shared
on special days and holidays. For example, the agreement or order may say how many weeks each parent can have the children
during the summer vacation and may also set a deadline for the parents to advise each other of which weeks they will want for
Parenting time arrangements can and often must be changed as children grow, and parents’ and children’s schedules change.
There are various services that can be used to help parents sort out parenting issues. Some of these are:
1. Parenting Education: Alberta Justice offers three courses for separating parents which are designed to give them information
about children, separation and handling conflict. These are:
• Parenting after Separation Seminar: This basic course is mandatory for parents wanting to make a court
application in the Court of Queen’s Bench and recommended for all separated parents.
• Parenting after Separation High Conflict: This course is designed for parents who are in a high conflict
stage in their separation and focuses on how to maintain good relationships between the children and
each parent, while keeping contact between the parents to a minimum.
• Focus on Communication in Separation: This course teaches parents how to communicate with each other
in a respectful, effective way.
2. Mediation: A mediator is trained to help guide the discussion between parents without taking a position themselves so as to
work towards an agreement.
3. Arbitration: Someone who is chosen by the parents to make a decision for them. The parents and the arbitrator sign an agree-
ment that the decision of the arbitrator will be binding. An arbitration decision can be enforced by the court. Often, the arbitrator
is also a mediator who will try to guide the parents to an agreement first, and if that does not succeed, will give her decision.
4. Parent Coordinator: A person hired by the parties to help them reach agreements about day-to-day issues relating to the chil-
dren. Usually this person is a professional, such as a psychologist, who has training in dealing with children or families in conflict.
5. Intervention and Assessment: The court may direct that a professional, such as a psychologist, conduct a short-term intervention
to help resolve an impasse or to complete a thorough assessment of the family and make recommendations about parenting. In
Provincial Court, the Intervention is used and provided free of charge by Alberta Justice. In Queen’s Bench, both the Intervention
and the Assessment are available, but is paid for by the parents, although a partial subsidy is available for low-income parents.
If parents are not able to agree, then they may ask the Court to decide the custody or parenting issues for them. When a judge
is asked to make a decision, they make that decision based on the best interests test.
The best interest test is set out in the Family Law Act and describes the factors that the judge must consider. These include:
1. The child’s physical, psychological and emotional needs;
2. Who has been caring for the child up to now;
3. The child’s culture, language, religion, etc;
4. The child’s preferences to the extent that it is appropriate to determine them;
5. Any family violence;
6. The child’s relationships with the parties and with other significant persons;
7. The parenting ability of each parent.
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 thirty-five years.
96 Women and the Law 7th Edition, 2011
Who is the amiCus Curiae and What does he or 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, he or
she will hire psychiatrists, psychologists, social workers or other experts to investigate and prepare a report on the child’s situation.
These reports take time to prepare, and often cause 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, he or 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. Usually agreements are reached based on these reports. However, if the case ends up going to trial then experts can
be called as witnesses to make recommendations about custody, guardianship, and access.
mediation and Court serViCe program
Mediation allows parents/guardians to work with a trained mediator to try and come to an arrangement regarding the children’s
living arrangements. The Alberta Courts’ Family Mediation Service offers mediation services free if you have a child/children
under eighteen years old and you or the other party makes less than $40,000 per year.
hoW mediation Works
During mediation the mediator will first meet with each party individually to gather information from both sides about the
dispute and see whether mediation will work for them. After these meetings the mediator may bring the two parties together
and try and lead the parties to agree on issues such as: how the child(ren) will share time with each parent, who will make day-
to-day decisions for the child(ren) and how much money will each party pay to support the child(ren). The mediator cannot
make any decision himself/herself but only guides the parties towards reaching their own agreements. Mediation Services are
currently available through Court Services in Edmonton, Calgary and Rural Alberta.
benefits of mediation
Mediation is totally confidential and any information gathered during mediation cannot be used in any court action. When
parties use mediation to come to an agreement it is often more accepted and longer lasting than those decisions handed down
by the courts. Also, mediation usually costs less money and concludes faster than trials.
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.
A parent or guardian who gives up his/her 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(s).
All adoptions are governed by Part 6 of the Child, Youth and Family Enhancement Act. This Act sets out the steps to be fol-
lowed and requirements that must be met.
Any child who is over ten days and under eighteen years of age may be adopted. When a child is twelve 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
Who Can Adopt
Any adult person over twelve years of age, whether single or married can adopt a child. Married persons must apply together
Women and the Law 7th Edition, 2011 97
for an adoption. A husband and wife can make a joint application if either is over eighteen years of age or if the child they wish
to adopt is the biological child of either of them.
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 Child and Youth
Services which tries 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. In addition,
one partner in a same-sex relationship may wish to adopt his/her partner’s birth child. The process followed is the same as a
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.
It is also possible to adopt children from outside of Canada. These adoptions are referred to as international adoptions.
Alberta has special rules for adopting children from outside of Canada.
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 make an adoption plan for a child 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 Child and Youth 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 make an adoption plan for her baby or
go through a licensed agency “pool” where information on the adoptive parent(s) is made available to women wanting to make
an adoption plan for their children. The birth mother then selects the family she wishes for her child from the “pool.” There is
no guarantee that the birth mother will not change her mind, and she has ten days after the birth of the child to revoke her
consent to the adoptive parents’ guardianship of the child without needing any reason. Private adoption is also more expensive.
The adoptive parents must pay a fee to the licensed adoption agency.
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 wishing
to make an adoption plan for their children, arrange the required home studies, 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 wishes to make an adoption plan for her baby by
chance (for example, through friends) or through 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 birth 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. It is important for the birth parents to know that there is no legal way to enforce an
open adoption contact arrangement once the adoption is final.
(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, once the birth parent has consented to the adoption, the prospective adopting parent(s) automatically become
joint guardians with the birth parent who consented to the adoption. Joint guardianship gives the prospective adopting parents
the authority to make decisions about medical treatment for the child before the adoption order is made. The legal guardian
remains a joint guardian of the child until the adoption order is granted.
(5) The birth mother must inform Alberta Child and Youth Services within thirty days of surrendering custody that she has
placed her child with the adoptive parents. Alberta Child and Youth Services will provide the birth mother with forms to fill
out once they are made aware of the prospective adoption.
98 Women and the Law 7th Edition, 2011
(6) The adoptive parents must also advise Alberta Child and Youth Services within thirty days that the child has been placed
with them for adoption. Once again, Alberta Child and Youth Services will require that application forms be filled out with
(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. 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 legal 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 Child and Family 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 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 Child and Family 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.
For adoptions completed on or after January 1, 2005, when an adopted child reaches the age of eighteen (plus six months), the
Director may reveal that information to interested parties. In addition, the Director may have received a contact preference that
indicates whether the person would like contact or not, which will be communicated to the person applying for the information.
(14) In all adoptions, the consent of the child’s guardian is necessary before an adoption order may be made. Unless a judge
dispenses with the guardian’s consent, the consent of the birth mother is reserved. The consent of the birth 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 twelve months
prior to the birth of the child.
Those who want to adopt a child through Alberta Child and Youth Services should apply to their local ACYS Adoption Unit.
Children become available for adoption through the Department in three ways:
• Where their parents surrender them voluntarily at birth or later;
• Where they have been taken away from their parents by the Department due to child abuse or neglect;
• 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.
Women and the Law 7th Edition, 2011 99
(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 Canada’s Waiting Kids of the Canadian Adoption Council which offers courses
on placement, infant care, preparation for parenthood, and adoption issues.
(9) All matching of children with prospective parents is done in the Central Office of Child and Youth 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 seven through fourteen in the section on Private Adoption.
There is no cost to the prospective parent.
Children of assisted human reproduCtiVe teChnologies
Some children are born to a woman who did not become pregnant through sexual intercourse with a man. People who have
health problems that prevent them from becoming pregnant, single persons who desire children, and partners in a gay or lesbian
relationship may need the assistance of Assisted Human Reproduction. The Family Law Act has legal provisions dealing with
parentage of the children who are created through sperm donation, artificial insemination, surrogacy and/or egg donation. Since
2004, Canada has had a Personal Health Information Registry that has information about donors in Canada. The name of a
donor cannot be given out unless the donor has provided written consent to his or her name being released. If donors agree, the
information can be given to parents and children.
Sections 281 through 286 of the Criminal Code of Canada deal with the offence of kidnapping one’s own child. It is an of-
fence for a parent to take or keep a child under who is fourteen years of age when a custody order gives custody to the other
parent. It is also an offence to take a child under fourteen 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 fourteen years of age cannot consent to being
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.
100 Women and the Law 7th Edition, 2011
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 Inter-
national 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 (ISS).
other serViCes aVailable
Other agencies are also available to assist a parent whose child has been abducted. ISS is an international, non-profit, non-
governmental organization. It works as a liaison between various social service agencies and a world-wide network of branch
offices and correspondents coordinated 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
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 tries to make
its services free to parents and children in Alberta. 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 403-270-3463.
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 a 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 less than eighteen 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 the child. 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
Women and the Law 7th Edition, 2011 101
• A child who is totally unmanageable and whose guardian cannot provide the child with adequate care
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. To report the alleged child abuse call 310-0000 to get the telephone
number of your local Child and Family Services office, or call the Child Abuse Hotline at 1-800-387-5437. 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.
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. Legal Representation for Children
and Youth (LRCY) is a free service that is provided to young people by the Office of the Child and Youth Advocate (1-888-
890-2020). LRCY receives referrals for the appointment of lawyers, for children and youth, from young people, child welfare
caseworkers, the Court, parents, foster parents, other caregivers, and concerned individuals. The decisions of this court may be
appealed to a higher court.
superVision orders, temporary and permanent guardianship orders
After hearing all the evidence, the court may order the mandatory supervision of the child and her family in their home if it
is proved that the child may be inadequately protected. 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 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 eighteen (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.
The Protection of Sexually Exploited Children Act provides protection for children involved in prostitution or prostitution
related activities. Such children are victims of sexual abuse, and sexual exploitation and require protection.
The Drug-endangered Children Act provides protection for children exposed to an adult’s involvement in drug activity, such
as manufacturing and trafficking. Such children are exposed to health and safety risks. They are victims of abuse and require
102 Women and the Law 7th Edition, 2011
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 sixteen. 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 im-
morality, 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 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.
You can apply for a subsidy if:
• You or your spouse/partner, or the child receiving care are Canadian citizens or permanent residents of
Canada and live in Alberta;
• You or your spouse/partner are an Alberta resident;
• Your children are twelve years of age or younger and are not yet attending grade seven;
• You and your spouse/partner are currently working, attending school, looking for work, or have special needs;
• You or your spouse/partner stay at home and have your child(ren) enrolled in a licensed pre-school or
approved early childhood development program.
Further information can be obtained from the district office of Alberta Child and Family Services or by calling: 1-877-
644-9992 or 780-644-9992 from Edmonton.
For children aged six to twelve years, out-of-school care programs are available. These programs, which must meet both
provincial and municipal standards, 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 eighteen kg (39.6 lbs) 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 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 certifi-
cate. A judge can impose a fine of up to $115. However, if you install a proper car seat after you have received a traffic ticket,
the judge does not have to fine you. If, within fifteen 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 in motion. 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.
Women and the Law 7th Edition, 2011 103
young persons and the laW
minors and their rights
In Alberta, a minor is a person under the age of eighteen. At eighteen, 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 mar-
riage, 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 eighteen.
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 neces-
sity 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 minors to assume
that they will be bound by any contract which they make.
A minor cannot sue or bring a legal action against a party in a court of law in their own name but must have an adult sue on
their 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 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.
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 sixteen
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 eighteen. There is an exception to this rule. A court may
allow a seventeen-year-old who is about to marry to sell or transfer any land that he or 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 ne-
cessary for the minor’s benefit, the inheritance will be tied up until the minor reaches the age of eighteen 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 (YCJA) applies to all young persons in Canada who are twelve years of age and continues to ap-
ply until the day they turn eighteen years of age. The YCJA may also apply to a person who is over the age of eighteen if the
offence was committed while he or she was under eighteen.
The YCJA ensures that young persons have the same rights as adults in the criminal justice system, including those guar-
anteed under the Charter of Rights and Freedoms. Some of these rights include:
1. The right to be informed of one’s legal rights;
2. The right to bail;
3. The right to hire a lawyer and to obtain Legal Aid.
104 Women and the Law 7th Edition, 2011
In addition, the YCJA sets out clear procedures for court proceedings, penalties, reviews, appeals and record keeping. These
will be outlined in more detail later on.
questioning of young suspeCts
If a young person is arrested and held in custody (i.e., detained) until 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 as well as a parent or guardian present during any ques-
tioning. 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.
Before charging a young person with a crime, a police officer may use his or her discretion to divert the young person from the
formal criminal court system and apply an extra-judicial measure instead. Extra-judicial measures may include: take no further
action, warn the young person, administer a caution, or refer the young person to a program or agency in the community that
may assist the young person not to commit offences.
If a charge is laid, a Crown Prosecutor has the discretion to provide a caution to the young person or to refer the young
person to an extrajudicial sanctions program. An extrajudicial sanctions program may include a period of supervision and condi-
tions, such as providing apologies to the victims, completing community service, or attending intervention programs. The young
person must freely consent to being subject to the sanctions and be willing to accept responsibility for the offence. The charges
are withdrawn when the young person returns to court after completing the extrajudicial sanctions program.
right to Counsel
The YCJA states that every young person, at any stage of the youth justice process, has the right to speak to a lawyer without
delay. If you cannot afford a lawyer, an application may be made to Legal Aid for a lawyer. Legal Aid is not free and the young
person’s parents will receive a notice of the amount owing for the lawyer’s services. If Legal Aid has advised the young person
that she does not qualify for assistance, the young person may ask the judge to order that a lawyer be appointed to represent her.
appearanCe in Court
A young person who is charged with an offence and who is not taken into custody or who is released from custody will be is-
sued a document that requires him or her to appear in court. The document may be a Promise to Appear, Appearance Notice,
or a Recognizance.
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 eighteen. 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 Youth Legal Aid counsel for more information on this.
If the young person is found guilty, the judge can consider a number of possible penalties. The judge may feel that a pre-
sentence report would be helpful in choosing a consequence that is right in the circumstances. The judge must order a pre-
sentence report if he or she is considering placing a young person in custody. A pre-sentence report is a document that contains
information about the youth’s character, attitudes, previous conduct, home life, activities, and future plans. The report is prepared
by a probation officer who has interviewed the young person, his or her parents, the victim (if there is one), and any other person
Women and the Law 7th Edition, 2011 105
who may be able to provide helpful information.
The penalties that a judge may order are called dispositions. If the young person receives an absolute discharge, he or she
will be free to go without conditions and the charge will not remain on his or her criminal record. 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. A discharge may also occur
after the young person has followed conditions that are imposed on him or her for a period of time that the judge considers
The young person may receive a stern warning from a judge that is referred to as a reprimand.
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 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 YCJA. “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 he or she has been tried under the adult court system.
A convicted young person may appeal the finding of guilt and/or the sentence imposed to the Court of Appeal of the province.
A further appeal to the Supreme Court of Canada can only be made if the Court decides to hear the appeal.
the youth reCord
There are strict provisions in the YCDA for the creation, maintenance, confidentiality, and destruction of criminal records of
young persons. There are four types of youth records: Youth Justice Court records, Police records, government records, and records
that are collected by a person or organization for reasons such as the administration of sentences.
The YCJA sets out who may have access to a young person’s record. The period during which time those persons have ac-
cess to the records will be different depending on how the charges were resolved. For instance, if the young person receives an
extrajudicial sanction, the access period will end two years after the youth agrees to the sanction. If the young person receives
an absolute discharge, the access period ends one year after the young person was found guilty. At the end of the access period,
the records are either destroyed or placed in an archive.
These rules do not apply to the records of young persons who have received adult sentences.
106 Women and the Law 7th Edition, 2011
ChApTEr 9: WOmEn And hEALTh
health Care insuranCe plan
In accordance with the Canada Health Act, Alberta has a publicly administered and funded health care system that guarantees
Albertans receive universal access to medically necessary hospital and health care services. This means that Albertans are no longer
required to pay for Alberta Health Care coverage. However, all Albertans are responsible to pay premiums which they owed
before December 31, 2008 unless they qualify for full premium assistance, government sponsored income support programs, or
are a senior citizen. All new and returning Alberta residents must still register for Alberta Health Care Insurance Plan (AHCIP)
coverage to receive insured hospital and physician services.
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 his or her home in Alberta or is committed to being physically present in Alberta for at least 183 days in a twelve-month
period. Tourists, transients, or visitors to Alberta are not considered to be residents, however full-time students and people in
the province on work contracts may be.
You must register yourself and your dependents in 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 because they receive coverage from the
Federal Government; 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 Alberta Health Care Plan office to ensure
that you have medical coverage.
Always carry your Alberta Health Care Card with you when you are seeking medical services. If you require medical/hos-
pital services outside Alberta, but in another province or territory within Canada you may be able to show your Alberta Health
Care Card (and some other identification) and have the service billed directly to Alberta Health Care. However, you may be
required to pay up front for the services. Keep your receipts and Alberta Health Care should be able to reimburse you as long
as the services provided are included in your Alberta coverage.
Who is an eligible dependent?
Your spouse, common-law partner, partner with whom you have an adult interdependent relationship and any children who
are under twenty-one 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 twenty-five are considered eligible dependents as well as children who
are single, over twenty-one and wholly dependent due to a physical/mental disability. 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
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 can send any medical receipts to the provincial health care agency from the province you came
from. 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 twenty-one or become fully independent, there will be
no waiting period.
Women and the Law 7th Edition, 2011 107
Can i get eXtra CoVerage?
Extra coverage for services that are not covered by Alberta Health Care is available through Alberta Blue Cross and other ex-
tended health care programs. There is generally a cost involved for coverage under these plans unless you qualify for an exemp-
tion 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, however, if they wish more than the basic
extras then they will have to 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 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. 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.
What are a patient’s rights?
Every patient has the right to choose her doctor. 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, you will want to find a doctor
who shares those 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 does not share your views, you may want to find someone else.
Except in special circumstances, such as emergencies, no one is allowed to touch you or treat you without your consent. The
consent that you give should be informed consent; meaning you should know the purpose of the procedure or treatment, what
the procedure or treatment will involve, common side effects or consequences of the procedure or treatment, and the alternative
procedures or treatments, 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 what you have agreed to. A consent form should not be “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 anesthetic 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 gan 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 ac-
ceptable 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 sixteen 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).
108 Women and the Law 7th Edition, 2011
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.
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-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, Freedom
of Information and Protection of Privacy Act, and the Personal Information Protection Act 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
What are my remedies?
If a hospital or your doctor has disclosed confidential information without your consent, or refused to provide, upon request, your
personal health information, you may apply, in writing, within sixty days of your cause of complaint arising, to the Information
and Privacy Commissioner to review the matter. (www.oipc.ab.ca)
Can i sue my doCtor?
Yes. If your doctor has revealed confidential information, 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 take steps to bring criminal charges
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
Women and the Law 7th Edition, 2011 109
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 disci-
pline 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.
What about assisted suiCide?
Assisted suicide is illegal. In the 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.”
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. Thus, people are not given legal approval to seek assistance in carrying out their own decision to die.
An autopsy is the cutting open of a body for the purpose of examining organs and tissues to determine why and how the person
died, or who the person is. An autopsy may include chemical, histological (when a thin slice of tissue is examined under the
microscope), microbiological and other investigations performed in a laboratory. An autopsy may include complex laboratory
tests, so it may be some weeks or months before results are known.
Only a medical specialist (i.e. pathologist) can perform an autopsy. Autopsies can sometimes be performed even when we
know when someone died, because what is learned through the autopsy will be helpful for future treatment or research purposes.
When reasonable doubt about the medical cause of death exists, an autopsy may be authorized by the Medical Examiner as
part of an investigation. During an investigation the medical examiner takes charge of the body, they may review past medical
history, and may throw out the clothing of the dead person if it is dirty or damaged. Personal things of the dead person that
are related to their death may be kept for the investigation or for the public fatality inquiry. These things may also be given to
a police officer.
It does not cost anything to have an investigation of a sudden death and you don’t need the permission of the next of kin
to do the investigation. When an autopsy is not necessary, an external examination will be done.
By law, autopsies are usually required if a death seems suspicious or unnatural, or occurs while a person is in prison or in
a psychiatric hospital. 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 in another 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 think that someone may have died an unnatural death or under suspicious circumstances, you should call the police.
The police will do the initial investigation and will tell the medical examiner what they find.
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.
A Provincial Court judge will hold the public fatality inquiry—it is not a trial, but a fact-finding investigation where witnesses
are called and evidence is presented. At the end of the inquiry the judge will write a report. You can see the report because sec-
tion 53.1 of the Fatality Inquiries Act, 2005 says that a written report should be available to the public. 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 another person from the community.
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 the Legal Aid office. An inquest is not a trial but all the evidence that comes out during an inquest might he used in criminal
or civil proceedings later on or may have other serious consequences for you. So you should only say what you know to be true
and if you are unsure about something you should say so.
A Certificate of Medical Examiner is a document that says why and how the person died, and a brief description of the
circumstances. It costs $15 to get this document. Insurance companies, banks or lawyers may ask for this document. The Office
of the Chief Medical Examiner will not give this document to any institution or person without the next of kin giving their
permission in writing.
If an autopsy was allowed to be done by the Medical Examiner’s Office, a copy of the short version of the report or a copy
of the detailed autopsy report are available. You can get the summary report for $15 and the detailed report for $40.
If you are an adult next of kin to the person who died you can see the autopsy reports. If you are not an adult next of kin
but have a written permission from the next of kin you can see the autopsy reports as well.
110 Women and the Law 7th Edition, 2011
eXternal eXamination report
If the Medical Examiner decides that an autopsy is not needed then the doctor will do an external examination. This report is
available for $15.
If you want to contact the Office of the Chief Medical Examiner in Edmonton or in Calgary:
7007 116 Street NW 4070 Bowness Road NW
Edmonton, Alberta Calgary, Alberta
Canada T6H 5R8 Canada T3B 3R7
Phone: (780) 427-4987 Phone: 403-297-8123
Fax: (780) 422-1265 Fax: 403-297-3429
You can call this office toll-free from anywhere in the province by dialing 310-0000.
Contact the Government of Alberta. If you have a question about autopsies you can call the toll-free province-wide com-
ment line at 310-4455.
In Alberta, if you are eighteen years or over and mentally competent, you may give 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 be signed by you. There are cases where oral consent may be made, if numer-
ous requirements are fulfilled, such as the oral consent being made in the presence of two witnesses who received instructions
from you to document the consent, and one of the witnesses was knowledgeable in the donation process and advised you of the
nature and consequences of the donation.
If you die (when you are over the age of eighteen) and no consent has been given, your spouse or closest adult 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 and Organ Donation 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 Health Care card. In addition, consent forms are available from the
HOPE Coordinator (Human Organ Procurement and Exchange Program) at every major transplant centre. (See the telephone
numbers in the Legal and Community Resources section of this booklet.)
Abortion is the premature termination of a pregnancy—an interruption of a pregnancy before the fetus can survive outside its
mother’s womb. An abortion can be spontaneous—for example due to health reasons or complications during pregnancy and is
called a miscarriage. An abortion can also be induced, for example, by a doctor—this is called an induced abortion.
Before 1988 abortions were illegal in Canada. Abortions were only allowed if they were performed by a doctor, in a specific
hospital and after the therapeutic abortion committee allowed the abortion to happen.
Because of these strict rules some women who lived in small towns could not get an abortion and didn’t have the same access
to the hospitals as women living in larger cities. This law violated the rights and freedoms we are granted under the Charter, so
in 1988 a new law came into effect that permitted women to get an abortion if they opted to.
The court also ruled that nobody other than the pregnant woman herself (the woman’s parents, husband, or boyfriend) can
stop the woman from having an abortion. As soon as you realize you may be pregnant go to the doctor—whether you want to
have an abortion or not.
Each of the Canadian provinces has its own laws and rules about how the doctors should perform the abortion. In Alberta,
the doctor cannot perform an abortion if you are more than twenty weeks (five months) pregnant.
Abortions are fully covered by Alberta Health Care (except at private clinics, which are only partially covered by Alberta
Health Care) and are very safe when performed by a trained doctor.
If you are married and want to receive an abortion, you do not need your husband’s permission to get an abortion. If you
are between sixteen and eighteen years of age and want to receive an abortion, you do not need your parents’ permission. You
also don’t need a guardian’s consent if you are under sixteen.
Women and the Law 7th Edition, 2011 111
Abortions that are not performed by a doctor can result in serious life-threatening infections, injuries, or even death. You
need to phone the clinic (403-283-9117 in Calgary and 780-484-1124 in Edmonton) to make an appointment to have an abor-
tion. When you call all you need is a positive pregnancy test, the first day of your last period or the results of an ultrasound, your
address with the postal code, your phone number, and your Alberta Health Care number. The procedure itself takes only ten
minutes, but be prepared to spend up to four hours at the clinic as the wait may be long. It does not hurt, but some anesthetic
may be given and you could get cramps. Getting an abortion also does not reduce your chances of getting pregnant in the future
and is completely confidential.
There are also sympathetic people available that will help you make a decision:
Options Sexual Health Association: 780-423-3737.
National Abortion Federation Hotline: 1-800-772-9100.
Abortion Information Line: (operates 24 hours a day and is toll free) 1-888-642-2725.
seXually transmitted infeCtions
What are stis?
Sexually transmitted infections (STIs) are any contagious diseases which are spread by sexual contact with another person and
which usually appear on the genitals. Because sexually transmitted infections 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 trans-
mitted infection 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 STIs to the Department of Health and to teach all persons
who are suffering from an STI how to prevent the spread of the disease.
If you are diagnosed as having a Sexually transmitted infection, you should immediately inform all of your past and present
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 STIs.
To locate an STI clinic in your area, look in the phone book under Alberta Health Services (pink pages) or contact the
local Department of Health, you can also visit any walk-in clinic for treatment for most STIs.
birth Control and sterilization
Where Can i get information about birth Control?
The Alberta government has a website of useful health information and links to other websites. This can be found at:
www.health.alberta.ca/health-information.html. For information specific to birth control, go to
www.health.alberta.ca/health-info/sex-birth-control-choices.html. In addition, doctors and Family Planning Clinics in Alberta
offer counselling and information face-to-face. 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 Family and
Community Support Services, Alberta Family and Social Services, Regional Health 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.
Sterilization renders a woman or man permanently infertile (i.e. incapable of producing children). Many couples choose steriliza-
tion as a method of birth control. A common method of sterilization for women 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. Another form of
sterilization available to women is through the use of Bleier clips. Women who have had Bleier clips inserted should have the
clips tested by their doctor. The Bleier clips have been shown to have a ten percent failure rate. A test called a hysterosalpingo-
gram will show if the clips are working.
112 Women and the Law 7th Edition, 2011
Men can also have a procedure for sterilization. A vasectomy is a surgical procedure for men during which the vas defer-
ens—the tubes that carry sperm from the testes—are severed. Vasectomy is a safe and permanent means of male contraception,
though it can sometimes be reversed should the need arise.
There are no laws prohibiting voluntary 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 per-
mission before proceeding, or vice versa. 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 more information and a referral. Your family doctor and some walk-in doctors can also refer you for
In the past, some 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.
Since 1998, midwives have been registered and licensed to practice in Alberta. Currently, registration is issued under the author-
ity of the Midwifery Health Disciplines Committee of Alberta Health and Wellness. Midwives must meet the requirements for
registration annually. In April 2009, midwifery became a publically funded service.
Women cannot see both a midwife and a doctor for pregnancy at the same time, although midwives will consult with family
doctors, obstetricians, pediatricians, or other specialists should the need arise. Midwives can also order all lab and diagnostic test-
ing as well as prescription medications that are relevant to pregnancy. About six weeks after the birth of your baby, your midwife
would transfer your care back to your family physician who will resume responsibility for the health of you and your new baby.
birth teChnology and legal issues
Over the years, traditional views of motherhood have been slowly changing. Increased equality for women and medical-scientific
progress bring new legal issues to the attention of the courts and the public. Specifically, medicine has recently uncovered new
ways to assist in reproduction. These methods are generally known as assisted reproductive technology. Assisted reproductive
technology may be used by women for infertility or for genetic reasons.
There are several types of assisted reproductive technology:
• Fertility Medication—agents that stimulate the development of follicles in the ovary;
• Artificial Insemination—the sperm of a donor (usually someone other than the husband) is implanted in
the woman to permit natural fertilization of the female egg (ovum) by the sperm;
• In Vitro Fertilization—the technique of letting fertilization of the male and female gametes (sperm and
egg) occur outside the female body. There are many types of in vitro fertilization;
• 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;
• Surrogacy—where a couple enters into a contract with another woman (the 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. For example, 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. Surrogate
motherhood may be very difficult, physically or psychologically, for the surrogate or the family, and at present is not legally
compensable in Canada, resulting in an alleged black market in surrogacy. Cases have recently come to light in which errors in
in-vitro fertilization resulted in an embryo belonging to one couple being implanted in another couple. Accordingly, reproductive
technologies have created challenges for health and family law both. Most of these issues 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.
In addition, the advent of assisted reproductive technology has raised a concern that judicial intervention into pregnancy and
birth may increase, in part because technological and medical advancements may allow 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 harm-
ful exposures and treatment of disease before birth. However, 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.
114 Women and the Law 7th Edition, 2011
ChApTEr 10: LEgAL And COmmuniTy rEsOurCEs
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.
Accommodation for Abused Women
See the Alberta Council of Women’s Shelters website for the most up to date information: www.acws.ca
Banff Camrose Enilda
Community Resource Centre Camrose Women’s Shelter Sucker Creek Women’s Emer-
403-760-3200 (Brigantia Place) gency Shelter
(Crisis/urgence) (Crisis/urgence) 1-877-672-1010 780-523-2929
1-800-813-4138 or 780-672-1035 (Crisis/urgence) 780-523-4357
Toll Free: 1-866-523-2929
Black Diamond Cold Lake
Rowan House Emergency Shelter The Dr. Margaret Savage Women’s Fairview
403-938-6785 Crisis Centre Crossroads Women’s Shelter &
(Crisis/urgence) 780-594-5095 Resource Centre
403-933-3370 (Crisis/urgence) 780-594-335 (Crisis/urgence) 780-835-2120
Brooks Desmarais Fort Chipewyan
Brooks & District Women’s Safe Big Stone Cree Nation Women’s Mikisew Cree First Nation
Shelter Society Emergency Shelter (Paspew House) 780-697-3329
403-362-2766 780-891-3905 (Crisis/urgence) 780-697-3323
(Crisis/urgence) crisis/urgence 780-891-3333
Edmonton Unity House
Calgary Edmonton Women’s Shelter Ltd. 780-743-4691
Awo Taan Native Women’s Shelter (W.I.N. House) (Crisis/urgence) 780-743-1190
Call: 403-531-1972 780-471-6709
or: 403-531-1976 (Crisis/urgence) 780-479-0058
Brenda Strafford Centre LaSalle Residence Grande Cache Transition House
403-270-7240 780-482-2190 Society
Calgary Women’s Emergency Lurana Shelter crisis/urgence 780-827-1791
403-234-SAFE (7233) (Crisis/urgence) 780-424-5875
Discovery House SAGE: Services Association of
403-670-0467 Greater Edmonton - Edmonton
(collect calls accepted)
Seniors’ Safe Housing
Kerby Centre (for seniors) 780-423-5510
403-705-3244 (Crisis/urgence) 403-702-1520
W.I.N.G.S. of Providence Society
Sheriff King Home 780-426-4985
(Crisis/urgence) 403-266-0707 Women’s Emergency Accommo-
Sonshine Centre 780-423-5302
Women and the Law 7th Edition, 2011 115
High Level Medicine Hat Sherwood Park
Safe Home Phoenix Safe House Strathcona Shelter Society Ltd. (A
780-926-2277 403-527-8223 Safe Place)
(Crisis/urgence) 1-888-926-0301 Toll Free: 1-800-661-7949 780-464-7232
or 780-926-3899 (Crisis/urgence) 403-529-1091 (Crisis/urgence) 780-464-7233
Hinton Musasa House Slave Lake
Yellowhead Emergency Shelter for 403-580-8206 Northern Haven Support Society
Women Society (Crisis/urgence) 403-529-1091 780-849-4418
780-865-4359 Toll Free: 1-877-214-4418
(Crisis/urgence) 1-800-661-0937 Morley (Crisis/urgence) 780-849-4418
or 780-865-5133 Eagle’s Nest Stoney Family Shel-
Hobbema (Maskwaci) 403-881-2000 Kainai Women’s Wellness Lodge
Ermineskin Women’s Shelter 403-653-3946
780-585-4470 Peace River Toll Free: 1-888-653-1909
crisis/urgence 780-585-4444 Peace River Regional Women’s
Shelter St. Paul
Lac La Biche 780-624-3466 / Toll Free 1-877- Columbus House of Hope
Hope Haven Women’s Shelter 624-346 780-645-5132
780-623-3104 (Crisis/urgence) 780-645-5195
(Crisis/urgence) 780-623-3100 Pincher Creek Toll Free 1800-263-3045
or Toll Free 1-866-727-4673 Pincher Creek Women’s Emer-
Lethbridge Shelter Community Crisis
Native Women’s Transition Home 403-627-2114 Society-Regions
Society (Crisis/urgence) 1888-354-4868 403-934-6643
403-329-6506 / Toll Free 1-877- (Crisis/urgence) 403-934-6634
777-6077 Red Deer
Central Alberta Women’s Emer- Taber
YWCA Harbour House gency Shelter Safe Haven Women’s Shelter
403-320-1881 / Toll Free 1-866- 403-346-5643 403-223-0483
296-0447 (Crisis/urgence) 1-888-346-5643
Lloydminster Rocky Mountain House Bigstone Cree Nation Women’s
Mountain Rose Women’s Shelter Emergency Shelter
Lloydminster Interval Home 403-845-5339 780-891-3905
Society Toll Free: 1-877-845-4141 Toll Free: 1-877-891-5322
780-875-0966 (Crisis/urgence) 403-845-4141 (Crisis/urgence) 780-891-3333
Wellspring Family Resource & Crisis Centre 780-778-6209 (Crisis/urgence) 1800-467-4049
Other Emergency Services for Abused Women
Calgary Counseling Centre Children’s Services Crisis Unit
403-265-4980 or 403-691-5991 (toll free) 1-800-638-0715
Calgary Police Non-Emergency 780 422-2001
403-266-1234 (after hours) 780-427-3390
Department of Social Services (Children Services) City of Edmonton (ask for Emergency Response Depart-
403-297-2995 (City of Calgary) ment )
Emergency Protection Order Program (Legal Aid Family
Law Office) Emergency Protection Order Program
Distress Centre Family Violence Info Line
403-266-4357 (toll free) 310-1818
Peer Support Services for Abused Women
YWCA – Sherriff King Crisis Line
In other areas of the province, contact the police who will in turn contact the on-call emergency worker in your area.
116 Women and the Law 7th Edition, 2011
Accounting Institute of Chartered Accountants of Alberta Referral Service Edmonton:
Other Alberta: 1-800-232-9406
Adoption Resource Centre
Adoption by Choice Adoption and Foster Care Recruitment Program
Adoptive Counseling (Child and Family Services) Child and Family Services
Aids/Sexually Transmitted Infection Information
STIs/HIV Information Line: 1-800-772-2437
Calgary Sexual Health Centre: 403-283-5580
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
Alberta Tissue Transplant Program: H.O.P.E. Program
Alberta Health Care Insurance Plan
780-427-1432 (for toll-free access within Alberta, first dial 310-0000)
Alberta Works: Social Support
Birth Control Information
Calgary Edmonton For all other areas in Alberta call Health
Alberta Health Services: Sexual Alberta Health Services: Birth Link:
and Reproductive Health Control Centre 1-866-408-5465
Calgary Sexual Health Centre Options Sexual Health
Child Abduction Information
Child Find Alberta
International Social Services
Child Abuse Information
Women and the Law 7th Edition, 2011 117
Dispute Resolution and Mediation Programs
Family Justice Services
Elsewhere in Alberta 403-340-7187 (Dial 310-0000 first for toll free access in Alberta)
Alberta Human Rights Commission
Confidential Inquiry Line 403-297-6571
Education and Community Services Phone 403-297-8407
Alberta Human Rights Commission Confidential Inquiry Line 780-427-7661
Canadian Human Rights Commission Edmonton: 780-495-4040 Toll Free: 1-888-214-1090
Calgary Edmonton Lethbridge
Immigrant Service Calgary Changing Together - A Centre for Lethbridge Family Services—
#1200, 910 - 7 Avenue S.W. Immigrant Women Immigrant Services
Calgary, Alberta, Canada #103, 10010 - 107A Avenue 403-320-1589
T2P 3N8 Edmonton, Alberta T5H 4H8
403-265-1120 780-421-0175 Medicine Hat
SAAMIS Immigration Services
Calgary Immigrant Women’s Edmonton Immigrant Services 177 12 Street NE
Centre Association Medicine Hat, Alberta T1A 5T6
CIWA Head Office 11240 - 79 Street 403-504-1188
#200, 138 - 4 Avenue SE Edmonton, Alberta T5B 2K1
Calgary, Alberta T2G 4Z6 780-474-8445
Millwoods Welcome Centre for
Calgary Catholic Immigration Immigrants
Society Main Office: 335 Tower II, Millbourne Mall
3rd Floor, 120 - 17 Avenue SW Edmonton, Alberta T6K 3L2
Calgary, Alberta T2S 2T2 780-462-6924
New Home Immigration and
Immigrant Vocational & Settlement
Language Referral Centre 572 Hermitage Road
#1401, 910 7 Avenue SW, Calgary, Edmonton, Alberta T5A 4N2
Alberta T2P 3N8 780-456-4663
Law Information Centres
Calgary Courts Centre, Main Floor, 601 - 5 Street SW, 403-476-4744
Edmonton - 2nd Floor South Law Society Library, Law Courts Building, 1A Sir Winston Churchill Square, 780-644-8217
Grande Prairie Courthouse, 10260 - 99 St., Grande Prairie, 780-833-4234
Red Deer Courthouse, Main Floor, 4909 - 48 Ave, 403-755-1469
Legal Aid Alberta – Family Settlement Services (FSS)
Referrals to this program are based on eligibility and are made through Legal Aid Alberta’s Legal Services Centres (program
information can be located later in this chapter)
Legal Services Centre Toll Free: 1-866-845-3425
118 Women and the Law 7th Edition, 2011
Legal Aid Alberta—Family Settlement Services (FSS)
Referrals to this program are based on eligibility and are made through Legal Aid Alberta’s Legal Services Centres (program
information can be located later in this chapter)
Legal Services Centre Toll Free: 1-866-845-3425
Calgary Red Deer
Phone: 403-297-2260 Phone: 403-340-5119
Standard Life Tower, 1800, 639 5 Avenue SW T2P 0M9 Millenium Centre, 110, 4909 49 Street T4N 1V1
Fort McMurray Siksika Nation
Phone: 780-747-2300 PO Box 1609, Siksika Nation, AB
717 West Tower, T0J 3W0
9915 Franklin Avenue T9H 2K4 Tel: 403-734-1091 (Calgary direct)
Phone: 780-538-5470 St. Paul
214 Place, Phone: 780-646-9125
1128, 9909 102 Street T8V 2V4 4902 50 Street
Phone: 403-381-5194 Wetaskiwin
#244, 200 4 Avenue South T1J 4C9 Phone: 780-352-3845
Provincial Building (main floor),
Medicine Hat 5201 50 Avenue, T9A 0S7
Provincial Building, #304, 346 3 Street SE T1A 0G6 Whitecourt
Peace River 207, 5115 49 Street (PO Box 1626) T7S 1P4
10038 99 Street (Bag 900, Box 6) T8S 1R7
Legal Aid Alberta Staff Law Offices
Services provided by staff law offices are based on eligibility and provided on a referral basis from Legal Aid Alberta Legal
Services Centres. (I.e. clients must contact a Legal Services Centre first to be assessed)
Central Alberta Law Office Red Deer Family Law Offices Youth Criminal Defence Office
#202, 4802 51 Avenue Edmonton: Calgary:
Red Deer, AB T4N 4H3 700, 10310 Jasper Avenue Suite 600, 444-5 Avenue S.W.,
Tel: 403-340-7730 (Melton Building) Calgary, AB T2P 2T8
Edmonton, AB T5J 2W4 Tel: 403-297-4400
Calgary: 6th fl., Melton Bldg., 10310 Jasper
400, 665 8 Street SW Ave.,
(Dominion Centre) Edmonton, AB T5J 2W4
Calgary, AB T2P 3K7 780-422-8383
244, 200 4 Avenue South
(inside Lethbridge Legal Services
Lethbridge, AB T1J 4C9
Women and the Law 7th Edition, 2011 119
Alberta Edmonton Native Counselling Services of
Lawyer Referral Service Edmonton Community Legal Alberta
1-800-661-1095 Centre 10975 – 124 Street
(Or 403-228-1722 in Calgary) 10056 101A Avenue Edmonton, Alberta
Edmonton, AB T5J 0C8 T5M 0H9
LEAF: Women’s Legal Education 780-702-1725 780-451-4002
& Action Fund
1-888-824-5323 Elizabeth Fry Society Student Legal Services
10523-100 Avenue 11011 88 Avenue NW
Calgary Edmonton, Alberta, T5J 0A8 Edmonton, Alberta T6G 0Z3
Calgary Legal Guidance 780-784-2201 / 1-866-421-1175
100, 840 - 7 Avenue SW Criminal Law Project
Calgary AB T2P 3G2 John Howard Society of Alberta 780-425-3356
403-234-9266 2nd Floor, 10523 - 100 Avenue
Edmonton, Alberta Civil/Family Law Project
Dial-A-Law T5J 0A8 780-492-8244
Calgary: 403-228-1722 780-423-4878
Toll free elsewhere in Alberta: Legal Education / Reform Project
1-800-332-1110 Law Society of Alberta 780-492-2227
Suite 800, Bell Tower, 10104 103 Crownest Pass
Elizabeth Fry Society Avenue Legal Resource Centre
#600-1509 Centre Street SW Edmonton, Alberta T5J 0H8 12501, 20 Avenue, Room 208
Calgary, Alberta, T2G 2E6 780-429-3343 Toll-free 1800- Blairmore
Phone: 403-294-0737 ex. 235 272-8839 403-562-8000
Law Society of Alberta Legal Resource Centre
Suite 500, 919 11 Avenue SW 201-10350 124 Street
Edmonton, Alberta Grande Prairie
Calgary, Alberta T2R 1P3 Grande Prairie Legal Guidance
Tel: 403-229-4700 / Toll-free Legal Resources
T5N 3V9 10113 103 Avenue
1800-661-9003 Grande Prairie, AB T8V 1C2
Calgary Women’s Centre
646 1st Avenue NE Calgary, Al- Native Counselling Services of
berta T2E 0B6 Alberta Red Deer
403-264-1155 10975 – 124 Street The Central Alberta Community
Edmonton, Alberta Legal Clinic
Student Legal Assistance T5M 0H9 403-314-9129
3390 Murray Fraser Hall, Univer- 780-451-4002 toll free: 1-877-314-9129
sity of Calgary
Calgary, Alberta, T2N 1N4 Student Legal Services
403-220-6637 11011 88 Avenue NW
Edmonton, Alberta T6G 0Z3
Native Counselling Services of
Alberta – South Region Criminal Law Project
614 6 Avenue SW, Calgary, Al- 780-425-3356
berta T2P 0S4
403-237-7850 Civil/Family Law Project
Legal Education / Reform Project
Pro Bono Law Alberta
120 Women and the Law 7th Edition, 2011
Sexual Assault Centers
Calgary Fort McMurray
Calgary Sexual Assault Response Team - Sheldon M. Fort McMurray Family Crisis Society
Chumir Health Centre Crisis Line: 780-791-6708
1213 4 Street SW Box 6165, Fort McMurray, AB T9H 4W1
Calgary, Alberta Business Office: 780-791-6708
Distress Centre -24-hour Support & Info Line: 403-237- PACE Sexual Assault Centre
5888 10031 103rd Avenue
24-hour Toll free (in Alberta): 1-877-237-5888 Grande Prairie, AB T8V 1B9
Police Service (Calgary) Non-Emergency Line (ask for
sexual assault unit)
Lethbridge Family Services - Counselling & Education
Sheriff King Home Southwest Alberta Distress Line: 403-327-7905
403-266-0707 1107 2nd Avenue A North
Lethbridge, AB T1H 0E6
Sexual Assault Centre of Edmonton
Lloydminster Sexual Assault & Information Centre
Edmonton Support Network 5011 49 Avenue
780-482-0198 Box 2033, Lloydminster, SK S9V 1R5
24-hour Crisis Line: 306-825-8255
University of Alberta Sexual Assault Centre
Crisis Line: 780 492-9771 Medicine Hat
2 - 705 Students Union Building Medicine Hat Police – Sexual Assault Crisis Line
University of Alberta Campus 1-800-552-8023
Edmonton, AB T6G 2J7 Sexual Assault Recovery Committee of Medicine Hat
Business Office: 780-492-9771 477 3rd Street SE
Medicine Hat, AB T1A 0G7
Fort McMurray 403-504-8026
Fort McMurray Family Crisis Society Crisis Line: 1-800-661-7949
Crisis Line: 780-791-6708
Box 6165, Fort McMurray, AB T9H 4W1 Red Deer
Business Office: 780-791-6708 Crisis Centre - Assualt Crisis Line
403-356-1099 Toll Free: 1-866-956-1099
A-201 - 5212 48 Street
Red Deer, AB T4N 7C3
Business Office: 403-340-1124
Central Alberta Sexual Assault Centre
For any other areas in Alberta call: 1-866-408-5465 (Health Link Alberta) or 1-888-237-5888 (Connect Family and Sexual
Abuse Network) or call your local police department.
Provides information about family finances, advises Debtors, arranges settlements between debtors and Creditors and landlord
Toll free 1-877-427-4088
Victims of Crime
Calgary Victim Assistance Unit
403-206-8398 / or toll-free 1-888-327-7828
Edmonton Victims Services
In other areas, call the local Court House or RCMP detachment.
Victims of Crime Financial Benefits Program
10th Floor, 10365 – 97 Street NW
Edmonton, Alberta T5J 3W7
780-427-7217 (Toll-free through Service Alberta: 310-0000)
Women and the Law 7th Edition, 2011 121
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, more commonly known as ‘maintenance’ or ‘support’.
Amicus curie: Latin: “friend of the court.” In Alberta, also refers to a lawyer appointed to represent a child during a parental
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 supersede 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
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; having 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 eighteen years of age who has a guardian and/or a trustee appointed by a
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
122 Women and the Law 7th Edition, 2011
Executor: Person appointed in a will to carry out the terms of a deceased person’s will
Exclusive Possession: The right of a spouse to have sole possession of the matrimonial home, thus precluding the other spouse
from living there
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
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
Judicial Separation: A separation of husband and wife by a decree of the court
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 obliga-
tions 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 individuals to resolve issues in dispute between themselves
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
Pre-nuptial Agreement: An agreement entered into by prospective spouses prior to marriage whereby the property rights of
each spouse is determined
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
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
Surrogate Court: Court that is concerned with the validity of wills, the administration of estates of deceased persons and de-
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 depen-
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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124 Women and the Law 7th Edition, 2011
Women and the Law 7th Edition, 2011 125