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How To Make A Constitutional Argument

Joy Smith Issues

The Family Law Reform Email Campaign

All 308 Members of House of Commons Made Aware of Bill C-560

I participated in an email campaign to make every Canadian Member of Parliament aware of parental alienation and Bill C-560 which will be before our government in January. You’re probably thinking that didn’t get me too far and you’d be right. All I got was nearly one hundred “Out of Office” or “Absence du bureau” responses. Some said, “Merci d’avoir contacté le bureau parlementaire du député… followed by the name of some honourable parliamentarian. Some were written in English, some in French, and some in both official languages. It would be more helpful if each automated response contained the Honourable Member’s website information, if email campaigns are so common.

Joy Smith’s automated response said that because she receives so many email campaigns she posts her responses to each campaign on her website. If you go to Joy’s website you will see her top three issues are: the conflict in Syria, the Senate Scandal, and Natural Health Products. While those are pretty important issues for all of us, you can tell that family law reform is not on her radar.

Ed Fast’s most recent website posts are about Canada’s pro-trade plan, Abbotsford’s nine green technology companies, and Ed’s travel disclosure report to the end of October 2013, but nothing about Family Law Reform or my Charter Challenge, even though I am his constituent.

Bud Loewen is involved in one of Abbotsford’s green tech companies, Columbia Cabinets, which makes kitchen countertops. Eight other Abbotsford companies will share the $840,000 funding from the Digital Technology and Pilot Program (DTAPP) and the Western Innovation Initiative (WINN). Bud was also the Parent Advisory Council President at Clayburn Middle School for two years till 2008. Later Bud was appointed District Parent Advisory Council President by Rhonda Pauls before she resigned to run for the school board in 2011, and before she voted with her fellow school trustees to give themselves a 5% pay raise during the biggest economic recession since 1930, while 3,000 Abbotsford residents rely on food banks, and we struggle for solutions to homelessness.

If a law is complicit at all, it is not law. ~ Professor Allan Young, Osgood Hall, York University, Toronto argued the Bedford Case

How To Make A Constitutional Argument in Canada

Lessons From The Recent Constitutional Challenge

Canada’s Constitution is in a living tree. Our highest law is alive and grows as we use it. The majority of us are divorced and being crushed by Canada’s irrational and arbitrary family laws. Our elected officials are reluctant to help their constituents and some agents of the crown are covering up family law abuses. Let me take you through the arguments of a Charter Challenge.

The Divorce Act of Canada has a social purpose. The laws that support our Divorce Act, for example the Employment and Assistance Act of British Columbia, the Family Maintenance Enforcement Act, and the Child, Family, and Community Services Act of British Columbia are also said to have social purposes. While much is made about how divorce is solely within the jurisdiction of our Federal government, it is clear to us all that the provinces, and even our cities, work together toward building a civil society.

In the Charter Challenge that brought down Canada’s prostitution law, it was proposed that Canada’s Constitution has at least these three core fundamental values:

  1. the protection of the vulnerable, in the case of divorce, solely children’s protection
  2. the protection of human dignity, in the case of divorce, solely children’s dignity
  3. the prevention of gender inequality, in the case of divorce, solely children’s equality

As individual Canadians how do we talk about a bad law to prove to the world it violates our Constitution? Canada’s prostitution law was called bad because, while it’s social purpose was to protect civil society from sex work on the street corner, it lead to tragically unnecessary deaths. You can listen to the lawyer who won the Charter Challenge for sex workers here as he explains his three constitutional arguments:

  1. The law was arbitrary. Some laws, like the Divorce Act (Canada) are so irrational, they do not even begin to achieve their purpose. The lawyers for sex workers lost this argument, but I would argue that the purpose of our Divorce Act is to help separated families save their money and their children. Many have argued the law tragically does the exact opposite, sometimes becoming an agent in the parental interference and alienation the court itself first identified and declared the primary concern for the children in the case. Lawyers have argued if a law is complicit AT ALL, it’s not law.
  2. The law was overbroad. Some laws, like the Divorce Act (Canada) are so vague they could refer to any behaviour. These laws extend into innocent behaviour and sweep up anyone unfortunate enough to have these irrational laws used against them. Unlike ordinary laws, divorce never ends and litigation often continues until the death of one of the parties. I could easily assert, although I cannot prove, suicides and murders have resulted from volatile and irrational family law procedures.
  3. The law was grossly disproportionate. Some laws, like the Divorce Act (Canada) are so bad that they contribute to mortality and morbidity, and increase the risk of death and harm. When a law is this bad it’s said to be “grossly disproportionate,” meaning it does more harm than good.

No one is saying that Parliament cannot permanently outlaw some unfit parents from parenting, only that the method of choosing which parents to permanently outlaw is irrational. For example, rarely an unfit parent is given a wonderful opportunity to rehabilitate themselves. While this is a compassionate act toward the parent, it is irrational and arbitrary act toward their children. Why don’t all unfit parents have a legal chance for rehabilitation if a medical chance for rehabilitation exists? If the reason that a parent is found unfit is because their shift work makes them always tired or never home, the Employment Insurance Act specifically calls for “job retraining for family reasons.” To avoid 50/50 equal parenting Canada’s federally-appointed Supreme Court judges have had to violate our Employment Insurance Act or face retraining every separated shift worker in Canada with young children. Shift workers are perfect parents while married, and only become “unfit” when separated. Like our prostitution laws, our family laws have been complicit in the deaths of Canadians and our Divorce Act is not law.

Bonne annee 2014

La fête des bulles d’amour – le 25 avril, 2014
Ensemble, nous sommes capables de beaucoup.
Il n’y a que 116 jours avant la journée de sensibilisation!

Bubbles Of Love Day – April 25, 2014
Together We Can Make A Difference
Only 116 days till Awareness Day!

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