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BILL NO. 9


Government Bill


6th Session, 56th General Assembly

Nova Scotia

46 Elizabeth II, 1997





An Act to Amend Chapter 240

of the Revised Statutes, 1989,

the Judicature Act






The Honourable Alan E. Mitchell

Minister of Justice








Halifax

Printed by Queens Printer for Nova Scotia



Explanatory Notes





Clause 1 provides for the composition of the Supreme Court.










Clauses 2 to 5 deal with the appointment and precedence of judges.












Clause 6 sets out the jurisdiction of the Family Division and provisions dealing with proceedings in the Family Division.










Clause 7 provides for an appeal to the Court of Appeal from any decision, verdict, judgment or order of the Family Division.





Clause 8 substitutes a reference to the Family Court with a reference to the Family Division in other Acts, rules, orders, regulations, by-laws, ordinances or documents.





Clauses 9 to 11 deal with certain transitional matters.









Clause 12 provides that this Act comes into force on proclamation.



An Act to Amend Chapter 240

of the Revised Statutes, 1989,

the Judicature Act



Be it enacted by the Governor and Assembly as follows:


1 Subsection 17(1) of Chapter 240 of the Revised Statutes, 1989, the Judicature Act, is repealed and the following subsections substituted:


(1) The Supreme Court shall be composed of


(a) the Chief Justice of the Supreme Court;


(b) the Associate Chief Justice of the Supreme Court;


(c) the Associate Chief Justice of the Supreme Court (Family Division); and


(d) not more than thirty-seven other judges.


(1A) The Supreme Court shall include a Family Division composed of the Chief Justice of the Supreme Court, the Associate Chief Justice of the Supreme Court (Family Division) and not more than fourteen other judges.


2 Section 20 of Chapter 240, as amended by Chapter 16 of the Acts of 1992, is further amended by adding ", and the person appointed Associate Chief Justice of the Supreme Court (Family Division)" immediately after "Court" in the fourth line.


3 Section 20A of Chapter 240, as enacted by Chapter 16 of the Acts of 1992, is amended by adding immediately after subsection (3) the following subsection:


(4) The Associate Chief Justice of the Supreme Court (Family Division) shall carry out the duties assigned to the Associate Chief Justice (Family Division) by the Chief Justice of the Supreme Court.


4 (1) Section 22 of Chapter 240, as amended by Chapter 16 of the Acts of 1992, is further amended by adding immediately after subsection (3) the following subsection:


(3A) The Associate Chief Justice of the Supreme Court (Family Division) shall have precedence next after the Associate Chief Justice of the Supreme Court over all other judges of the Court.


(2) Subsection (4) of Section 22, as enacted by Chapter 16 of the Acts of 1992, is amended by adding "(Family Division)" immediately after "Court" in the third line.



5 (1) Section 23 of Chapter 240, as amended by Chapter 16 of the Acts of 1992, is further amended by adding immediately after subsection (3) the following subsection:


(3A) In the absence or incapacity of the Chief Justice of the Supreme Court and the Associate Chief Justice of the Supreme Court or if such offices are vacant, the Associate Chief Justice (Family Division) shall have and exercise the powers and perform the duties of the Chief Justice.


(2) Subsection 23(4) of Chapter 240, as enacted by Chapter 16 of the Acts of 1992, is amended by


(a) striking out "and' in the second line and substituting a comma; and


(b) adding "and the Associate Chief Justice of the Supreme Court (Family Division)" immediately after "Court" in the third line.


6 Chapter 240 is further amended by adding immediately after Section 32 the following heading and Sections:


FAMILY DIVISION

32A (1) The Family Division of the Supreme Court has and may exercise in such judicial districts, or parts of a district, as are designated by the Governor in Council pursuant to Section 32H the powers and duties possessed by the Supreme Court in relation to, and has and may exercise jurisdiction in relation to, proceedings in the following matters:


(a) formation of marriage;


(b) dissolution and annulment of marriage;


(c) judicial separation and separation orders;


(d) rights to property in disputes among spouses or members of the same family;


(e) restitution of conjugal rights;


(f) maintenance of a deceased person's dependants;


(g) declarations of status, including validity of marriage, parentage, legitimacy and legitimation;


(h) alimony, maintenance and protection for spouses;


(i) maintenance of children, including affiliation proceedings and agreements;


(j) maintenance of parents;


(k) enforcement of alimony and maintenance orders, including reciprocal enforcement of those orders;


(l) custody and access to children;


(m) adoption;


(n) child abduction;


(o) interspousal and familial torts;


(p) charges or proceedings against a person in relation to an offence under an enactment against another family member;


(q) guardianship of the person and property of minors;


(r) consent to medical treatment of minors;


(s) the committal, custody or detention of any person, or the management of that person's property, for reasons of alcoholism, mental illness, mental incompetency or mental or physical infirmity;


(t) change of name;


(u) presumption of death;


(v) parens patriae jurisdiction;


(w) divorce;


(x) the interpretation, enforcement or variation of a marriage contract, cohabitation agreement, separation agreement or paternity agreement;


(y) relief by way of constructive or resulting trust or a monetary award as compensation for unjust enrichment between persons who have cohabitated;


(z) those other matters that are provided by or under an enactment to be within the jurisdiction of the Family Division.


(2) In addition to those matters referred to in subsection (1), the Governor in Council may by order confer on the Family Division jurisdiction over any or all charges, offences and matters arising from any one or more of the following Acts or subjects:


(a) the Labour Standards Code in so far as it relates to a prosecution for an offence respecting the employment of children;


(b) the Young Persons' Summary Proceedings Act;


(c) the Young Offenders' Act (Canada);


(d) sections 172, 215 and 733.1 of the Criminal Code (Canada);


(e) sections 266, 810 and 811 of the Criminal Code (Canada), where the parties are spouses or parent and child;


(f) charges or proceedings under the Criminal Code (Canada) with respect to incest and other sexual offences committed by a family member against another member of the same family, corrupting children, failing to provide necessaries, abandoning children, abduction of children by members of the same family, assaults by a member of a family against another member of the same family and thefts by a family member from another member of the same family;


(g) such other Acts or matters as the Governor in Council deems appropriate.


32B (1) The Chief Justice of the Supreme Court may from time to time direct that any judge of the Supreme Court hear and determine proceedings brought in the Family Division and for such purpose such judge is a judge of the Family Division.


(2) The Chief Justice of the Supreme Court may from time to time direct that any judge of the Family Division of the Supreme Court hear and determine matters other than those referred to in Section 32A, but only if the assignment does not prevent that judge from spending the substantial majority of that judge's time hearing causes or matters in the Family Division.


32C (1) A judge of the Family Division may, in accordance with the regulations, order that a proceeding commenced in the Family Division be transferred out of that Division or to another court where, in the opinion of the judge, there is a preponderance of convenience for the proceeding to be dealt with elsewhere.


(2) Where a proceeding that should not have been commenced in the Family Division is so commenced, a judge of the Family Division may at any stage of the proceeding, order that the proceeding be transferred out of that Division or to another court in which the proceeding may properly be taken, and all steps taken by any party in the proceeding and all orders made therein before the transfer are valid and effectual as if they were taken or made where the proceedings ought to have been commenced.


(3) A judge of the Supreme Court or of another court having jurisdiction in a proceeding that could be commenced in the Family Division may, in accordance with the regulations, order that the proceeding be transferred to the Family Division where, in the opinion of the judge, there is a preponderance of convenience for the matter to be dealt with by the Family Division.


32D Subject to Section 37 and any other Act, whether of the Legislature of the Province or of the Parliament of Canada, that applies to proceedings in the Family Division, a judge of the Family Division shall hear a matter in open court unless after considering


(a) the public interest in hearing the proceeding in open court;


(b) any potential harm that may be caused to any person if matters of a private nature were disclosed in open court; and


(c) any representations made by the parties,


the judge is of the opinion that the matter should be heard, in whole or in part, in camera.


32E (1) A judge, on application or on the judge's own motion, may adjourn a proceeding brought in the Family Division where the judge considers that any party to the proceeding or any child affected by the proceeding would benefit by counselling or mediation or professional services.


(2) Where a proceeding brought in the Family Division is adjourned pursuant to subsection (1), the judge may order a party to pay all or any portion of the fees and expenses specified in the order for any of the services.


32F (1) Upon application or on the judge's own motion, a judge of the Family Division may direct a family counsellor, social worker, probation officer or other person to make a report concerning any matter that, in the opinion of the judge, is a subject of the proceeding.


(2) A person directed to make a report pursuant to subsection (1) shall file a written report with the Family Division together with a copy of the report for each party to the proceeding and for the judge.


(3) Notwithstanding any rule of evidence to the contrary, the contents of a report filed pursuant to subsection (2) shall be evidence in the proceeding.


(4) A person filing a report pursuant to subsection (2) is a competent and compellable witness.


(5) Any party, including the party calling the person as a witness, may cross-examine the person referred to in subsection (4).


(6) No action lies or shall be instituted against a person who prepares a report pursuant to subsection (1) for any loss or damage suffered by a person by reason of anything in good faith done, caused, permitted or authorized to be done, attempted to be done or omitted to be done by that person in the carrying out or supposed carrying out of that duty.


(7) A judge may specify in an order made pursuant to subsection (1) the amount of any charge for the report that each party is required to pay.


32G It is the duty of a peace officer to serve any process issued out of the Family Division, to execute any order issued by any judge of the Family Division, to convey a young offender to such place or places as may be directed in such orders and to assist the Family Division and the officers of the Division in carrying out the Young Offenders Act (Canada) and any other matters or enactment for which the Family Division is responsible.


32H The Governor in Council may designate a judicial district, or part of a district, in which the Family Division of the Supreme Court may exercise its jurisdiction and may designate whether that jurisdiction is exclusive or concurrent.


7 Section 38 of Chapter 240, as amended by Chapter 16 of the Acts of 1992, is further amended by adding immediately after subsection (1) the following subsection:


(1A) Notwithstanding any enactment, an appeal lies to the Court of Appeal from any decision, verdict, judgment or order of the Family Division of the Supreme Court or a judge thereof.


8 Any reference in any Act of the Legislature or in any rule, order, regulation, by-law, ordinance or in any document whatsoever to the Family Court for the Province of Nova Scotia or to a judge of that Court, whether such reference is by official name or otherwise, may, as regards any subsequent transaction, matter or thing relating to the affairs or matters or any of them assigned to the Family Court be held and construed to be a reference to the Family Division of the Supreme Court or to a judge of that Division, as the case may be, in a judicial district, or part of a district, designated pursuant to the Judicature Act.


9 (1) Where, on the coming into force of this Act, any action, cause, issue, proceeding or matter has been commenced before a judge of the Family Court and the judge becomes a member of the Family Division of the Supreme Court


(a) the action, cause, issue, proceeding or matter is continued in the Family Division of the Supreme Court; and


(b) the judge dealing with the action, cause, issue, proceeding or matter may continue to deal with it in the judge's capacity as a judge of the Family Division of the Supreme Court.


(2) Where, on the coming into force of this Act, any action, cause, issue, proceeding or matter has been commenced before a judge of the Family Court and that judge does not become a judge of the Family Division of the Supreme Court, the judge may continue to deal with the action, cause, issue, proceeding or other matter in the judge's capacity as a judge of the Family Court.


(3) Where, on the coming into force of this Act, any action, cause, issue, proceeding or matter referred to in Section 32A has been commenced in the Supreme Court


(a) the action, cause, issue, proceeding or matter is continued in the Family Division of the Supreme Court; and


(b) any judge dealing with the action, cause, issue, proceeding or matter may continue to deal with it in the judge's capacity as a judge of the Supreme Court.


10 Any records and files of the Family Court for the Province of Nova Scotia in a designated judicial district, or part thereof, become the records and files of the Supreme Court of Nova Scotia upon designation of the records by the Governor in Council.


11 Rules made by the Family Court Rules Committee pursuant to subsection 11(2) of the Family Court Act concerning the practice and procedure in the Family Court continue and apply to the practice and procedure in the Family Division of the Supreme Court until amended, varied, cancelled, suspended or repealed pursuant to the Judicature Act.


12 This Act comes into force on such day as the Governor in Council orders and declares by proclamation.

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