Harper social conservative agenda rears its head - moves against same sex marriage
- Thread starter fuji
- Start date
The government was not required to intervene in the case at all, it could have left it up to the judge. In intervening, it could have stuck to the non-controversial claims about residency. It could have determined--as Prof. Cossman did--that there are various reasons why the archaic domicile law might not apply, she sited application of equality law as an example.As I commented before, the government could only choose not to make the argument if it chose to ignore a law the professor agrees applies.
The government certainly had a choice here, as to how it wanted to handle it. Prof Cossman pointed out that they did not have to raise this claim, so don't lie and tell me they did. They chose to crack down as hard as it could on same sex marriages, until that trial balloon burst unpleasantly into the media, and they back-tracked.
Unless, again, you think that a lawyer for the Attorney General walks into a Canadian court and says that thousands of people who hold Canadian marriage licenses aren't actually married after all, without the Attorney General himself actually knowing about it.
He repeatedly made this claim:Sorry but I don't believe he does.
"The argument is confined to the function of the Divorce Act because the application is confined to the application of the Divorce Act. They don't need to repeat it every time, because that is how the action is framed. Simple as that."
I repeatedly pointed out to him that it was not confined the Divorce Act, but was in fact a claim that the marriages were not valid in general, not just for the purpose of the Divorce Act, but for any purpose--the Government considered the marriages non existent in general. That is plain in the way it's written in the factum and anybody can read it for themselves.
As it turns out out Prof. Cossman agrees with me and disagrees with him. Given RLD's infamous inability to ever admit that he's wrong I am anticipating that he will vent his spleen on reading this, but so be it--he was wrong.
And I think he should take her class.
Sorry Fuji, on this point RLD is spot on when he posted
You really should avoid the legal stuff.
It is obvious you have never graduated from Law School.This area of law is Prof Cossman's speciality. I'll leave it to her. Maybe so should rld.
Sorry Fuji :closed_2:
Repeating your errant claim does not make it any more true. You seem to think that your interpretation is correct; it isn't. My repeating that fact won't convince you, but I plead with you to stop repeating it.The good professor directly contradicted rld, as anyone who understands English can plainly see. You can keep on blustering but that will remain fact.
Did Harper reveal his "hidden agenda?"
Nope. The Globe story was just bad journalism:
http://fullcomment.nationalpost.com...ing-and-cheap-politics-create-a-phony-crisis/
Nope. The Globe story was just bad journalism:
http://fullcomment.nationalpost.com...ing-and-cheap-politics-create-a-phony-crisis/
This isn't about my opinion: RLD's interpretation is directly contradicted by Prof. Cossman's interpretation. Do you really need me to juxtapose the directly contradicting quotes for you?Repeating your errant claim does not make it any more true. You seem to think that your interpretation is correct; it isn't. My repeating that fact won't convince you, but I plead with you to stop repeating it.
Absolutely, and the article you cite is a perpetuation of the hidden agenda. It argues that "conflict of laws" means that Canadian courts should behave in ways that directly contradict the Charter of Rights and Freedoms, the Ontario Human Rights Code, and so on.Did Harper reveal his "hidden agenda?"
Our government does not have the power to abrogate charter rights and therefore no treaty signed by the government does either. You can yell "conflict of laws" until you are blue in the face: The government of Canada simply lacks the power to discriminate on the basis you want it to discriminate on, even if such discriminatory behavior would curry favour with foreign bigots if we did.
There is a damn good reason why the Minister of Justice did an about face.
It is unconstitutional to say that a couple cannot marry because they are of the same sex, and citing some treaty with a foreign nation does not make it any less unconstitutional. The rights of people in Canada (visitor, resident, or citizen) cannot be abrogated merely by signing a treaty.
Mind if I make this my signature line?Fuji fuji fuji.....your predictions have never been on the money. You've been wrong on so many things over such a long time frame ......from Russian rockets in Mexico to swine flu to internet postings of security scans.....and it goes on and on. Fuji predicting something will happen is almost a guarantee that it won't. Why work yourself into a lather until some actually concrete happens? You did this a month ago on abortions didn't you? Calm yourself
"It is absolutely accurate in terms of the technical rules of private international law."
A Jan 12 report documented the story of a lesbian couple from Florida and the United Kingdom who got married in Canada in 2005. They have since been told they could not file for a divorce because they were never married in the first place. Their lawyer, Martha McCarthy, could not be reached for comment.
As a result, the federal Conservative government has served notice to thousands of same-sex couples that had marriage ceremonies in Canada since 2004: they are not legally married.
But Toronto lawyer Brenda Cossman says this shouldn’t come as a shock to couples. Canadian divorce law hasn’t changed.
“To get a divorce in Canada, under the divorce act, you must live in Canada for a year,” she says. “There is a one-year residency requirement, which applies to everybody. There's no residency requirement to get married, but there is a residency requirement to get a divorce.
“I have been yelling about this since 2003 when Americans started to travel to Canada to get married. I remember thinking, 'Don't do it!,'" says Cossman. “Really, those couples should have done their due diligence before they came here to get married. They should have asked if they can take their marriage over the border . . . Canada isn’t changing anything. This has always been the legal risk.”
Canadian laws state that a marriage is considered legally valid depending on the law where the couple lives, not where they got married, she says. “So if they are going back to Massachusetts, it's fine. If it's Texas, for example, it's not fine, which is a big problem right now in the States. It's a mess."
Prime Minister Stephen Harper assured reporters Jan 12 that he has no plans to roll back same-sex marriage rights in Canada.
“It appears like they are reopening same-sex marriage when the government promised they were not going to,” says Cossman. “I don’t think they will. This will not affect the marriage rights of Canadians. This affects anyone who isn’t Canadian. This was bound to happen.”
Cossman says McCarthy plans to challenge the one-year residency requirement for divorce in Canada, which would affect all couples – straight or gay.
“It looks like Martha will try to challenge the constitutionality of the one-year residency rule,” Cossman says.
A Jan 12 report documented the story of a lesbian couple from Florida and the United Kingdom who got married in Canada in 2005. They have since been told they could not file for a divorce because they were never married in the first place. Their lawyer, Martha McCarthy, could not be reached for comment.
As a result, the federal Conservative government has served notice to thousands of same-sex couples that had marriage ceremonies in Canada since 2004: they are not legally married.
But Toronto lawyer Brenda Cossman says this shouldn’t come as a shock to couples. Canadian divorce law hasn’t changed.
“To get a divorce in Canada, under the divorce act, you must live in Canada for a year,” she says. “There is a one-year residency requirement, which applies to everybody. There's no residency requirement to get married, but there is a residency requirement to get a divorce.
“I have been yelling about this since 2003 when Americans started to travel to Canada to get married. I remember thinking, 'Don't do it!,'" says Cossman. “Really, those couples should have done their due diligence before they came here to get married. They should have asked if they can take their marriage over the border . . . Canada isn’t changing anything. This has always been the legal risk.”
Canadian laws state that a marriage is considered legally valid depending on the law where the couple lives, not where they got married, she says. “So if they are going back to Massachusetts, it's fine. If it's Texas, for example, it's not fine, which is a big problem right now in the States. It's a mess."
Prime Minister Stephen Harper assured reporters Jan 12 that he has no plans to roll back same-sex marriage rights in Canada.
“It appears like they are reopening same-sex marriage when the government promised they were not going to,” says Cossman. “I don’t think they will. This will not affect the marriage rights of Canadians. This affects anyone who isn’t Canadian. This was bound to happen.”
Cossman says McCarthy plans to challenge the one-year residency requirement for divorce in Canada, which would affect all couples – straight or gay.
“It looks like Martha will try to challenge the constitutionality of the one-year residency rule,” Cossman says.
He's one of those people that's "always right". I know quite a few of those in real life and everyone hates them, they just tolerate them and make nice. It doesn't matter what others on here say or how many times it's said, he'll always be the same arrogant windbag.Repeating your errant claim does not make it any more true. You seem to think that your interpretation is correct; it isn't. My repeating that fact won't convince you, but I plead with you to stop repeating it.
Apparently yes.Do people seriously believe that the Tories have been sitting on a plan, waiting for an impatient non-resident same-sex couple to file a Charter challenge so they can divorce in a hurry, so that they can spring it into action? Matt Gurney
I can`t imagine anybody just pretending to be so thick. :biggrin1:
And having done so, can anyone even begin to explain what the next phase of this operation would be? Unless the Conservatives plan to declare that all Canadian homosexuals are actually residents of Qatar, I’m not sure how questioning the validity of marriage licences granted to non-resident couples confers any advantage.
I think you missed my point.Absolutely, and the article you cite is a perpetuation of the hidden agenda. It argues that "conflict of laws" means that Canadian courts should behave in ways that directly contradict the Charter of Rights and Freedoms, the Ontario Human Rights Code, and so on.
Our government does not have the power to abrogate charter rights and therefore no treaty signed by the government does either. You can yell "conflict of laws" until you are blue in the face: The government of Canada simply lacks the power to discriminate on the basis you want it to discriminate on, even if such discriminatory behavior would curry favour with foreign bigots if we did.
There is a damn good reason why the Minister of Justice did an about face.
It is unconstitutional to say that a couple cannot marry because they are of the same sex, and citing some treaty with a foreign nation does not make it any less unconstitutional. The rights of people in Canada (visitor, resident, or citizen) cannot be abrogated merely by signing a treaty.
Maybe the law as it was written can be defended (Andrew Coyne raised some interesting points). Maybe it can't.
Either way, though, the Globe's assertion that this represented a change in direction was simply wrong. The law hadn't changed, and there was no hidden agenda.
As Matt Gurney's piece pointed out, the Globe story never passed the smell test. http://fullcomment.nationalpost.com...-after-gay-marriage-hed-be-smarter-than-this/
The Crown never argued that, and neither has anyone here. To grossly summarize what has been said: The marriages are invalid in the parties place of domicile, if the marriages were valid there they would be able to be divorced there. Canada has a requirement, as do most jurisdictions that you have to have a connection (typically domicile by one of parties) to the jurisdiction for the Courts to entertain a divorce action. To change this opens a huge can of worms among which is does Canada really desire to become the Reno of Gay and Lesbian Divorce?It is unconstitutional to say that a couple cannot marry because they are of the same sex.
Your post indicates why it is that we are “blue in the face” and why I'm not going to bother any further.You can yell "conflict of laws" until you are blue in the face
You're splitting hairs there. You are saying that unless there's a legislative change they haven't done anything, and I vigorously dispute that. Nowhere did I claim that this was a legislative move. It was an executive move. They were using their executive control over the resources of the Government of Canada to advance their agenda against same sex marriages. They were leveraging the legal resources of the Attorney General's office to work through the courts to roll back some same sex marriages that previously everybody thought were valid.The law hadn't changed, and there was no hidden agenda.
Whether or not their argument is true--we don't know. A judge hasn't ruled on it. We don't know whether their argument would be rejected based on "equality law" (one of Prof Cossman's thoughts), or for some other reasons.
Previously everybody thought that these people were married in Canada. Everybody knew their marriages weren't recognized in their home jurisdictions. Nobody thought that meant that they wouldn't be considered married in places that did recognize same sex marriages, such as when they are visiting Canada. The position advanced by the government is that these people were not even married when they were in Canada, and will not be considered married even if they moved to a jurisdiction that recognizes same sex marriages, because they were domiciled in a jurisdiction that did not recognize their marriage at the time that it was performed.
So to the extent that they are working to roll back some same sex marriages, that is what I would call the hidden agenda.
Note that the government has two parts: They are the legislative majority in the commons, but they are also the executive authority. It is as the executive authority that they are pursuing this, and then they are saying that they are doing nothing by pointing out that they are not making any legislative changes. As if the executive resources of the Government of Canada amount to nothing.
You really need to back up and review the original factum and listen to Cossman's video. They made a claim that was broader than the divorce act. They claimed the marriages weren't even originally valid because at the time they were married they were living in a jurisdiction that did not recognize them. In other words, that the marriages aren't even valid in Canada, and would remain invalid even if the couple moved to a jurisdiction that recognized them. Not simply that they can't divorce, but that they aren't married period.The marriages are invalid in the parties place of domicile, if the marriages were valid there they would be able to be divorced there.
Cossman discusses this towards the end of the video. Listen carefully around the parts where she is talking about the hypocrisy of issuing a marriage license that means nothing on the day it's issued. I urge you to watch it.
One final time. You misunderstand the argument that was made (which should be abundantly clear to you since at least four people if not more with legal training have pointed it out to you).They claimed the marriages weren't even originally valid because at the time they were married they were living in a jurisdiction that did not recognize them. In other words, that the marriages aren't even valid in Canada, and would remain invalid even if the couple moved to a jurisdiction that recognized them.
The Underlined portion of what you wrote is obviously untrue: if such a couple managed to jump through the immigration hurdles and became permanent residents of Canada they would not be required to remarry, and once they were resident in Canada for a year could divorce in Canada.
