Second

Session, 46th General Assembly

Elizabeth II, 2009

BILL 18

AN ACT TO AMEND THE JUDICATURE ACT

Received and Read the First Time ...................................................................................................

Second Reading .................................................................................................................................

Committee ............................................................................................................................................

Third Reading .....................................................................................................................................

Royal Assent ......................................................................................................................................

HONOURABLE

THOMAS W. MARSHALL, Q.C.

Minister of Justice and Attorney General

Ordered

to be printed by the Honourable House of Assembly

EXPLANATORY NOTES

This Bill would amend the Judicature Act to provide for the reorganization

of the Trial Division of the Supreme Court of Newfoundland and Labrador into 2

parts, a General Division having responsibility for all matters other than

family law matters and a Family Division that would have responsibility for

family law matters in areas of the province currently served in that regard by

the Unified Family Court.

The Bill would also provide that the

area of the province where the Family Division would exercise its authority

would, initially, be the same as that of the Unified Family Court but that it may

be expanded by regulations that the Lieutenant-Governor in Council would have the

authority to make.

As a consequence of these amendments

the Unified Family Court Act would be

repealed.

A BILL

AN ACT TO AMEN D THE JUDICATURE ACT

Analysis

Division 1 Heading Added

Division 1

General Provisions

2. S.20.1Added

Trial Division

S.21 R&S

Trial Division

4. S.23 R&S

Jurisdiction

5. S.27 R&S

Jurisdiction of judges

6. S.28 Rep.

Title of documents

7. S.33 Rep.

Sitting of Trial Division

8. Divisions 2 and 3 Added

Division 2

Trial Division -

General Division

43.1 General Division

43.2 Subject-matter

jurisdiction

43.3 Title of documents

43.4 Judge may transfer

case to Family

Division

Division

Trial Division -

Family Division

43.5 Judicial area

43.6 Family Division judges

43.7 Geographic

jurisdiction

43.8 No jury

43.9 Jurisdiction of court

43.10 Judge may

transfer

case

43.11 Jurisdiction of court

may be extended

43.12 Standing in

court

43.13 Persons excluded

43.14 Investigation

43.15 Title of documents

43.16 Membership in Rules

Committee

43.17 Court order

binds

Crown

Consequential Amdt.

Transitional

RSNL1990 cU-3 Rep.

Commencement

Be it enacted by the Lieutenant-Governor and

House of Assembly in Legislative Session convened, as follows:

RSNL1990 cJ-4

as amended

1. The

Judicature Act is amended by adding immediately after the heading "PART

II THE TRIAL DIVISION" the heading:

Division 1

General Provisions

2. The Act is amended by adding immediately before

section 21 the following:

Trial Division

20.1

(1) The

Trial Division as it existed prior to the commencement of this

section and the Unified

Family Court, continued under the Unified

Family Court Act as a division of the Supreme Court of Newfoundland and

Labrador, are continued as a division of the Supreme Court of Newfoundland and

Labrador to be known as the Supreme Court of Newfoundland and Labrador, Trial

Division.

(2) The Trial Division referred to in subsection

(1) has all the inherent powers of a superior court at common law.

Section 21 of the Act is repealed and the

following substituted:

Trial Division

(1) The

Trial Division consists of 21 judges, one of whom shall be a chief justice, who

shall be called the Chief Justice of the Trial Division, and 20 other judges

who shall be called judges of the Trial Division.

(2) The Trial Division shall be composed of 2

divisions called the General Division and the Family Division.

(3) A judge who is not assigned to the Family

Division under subsection 43.6(1) shall be considered to be assigned to the

General Division.

(4) The Chief Justice of the Trial Division may

hear and determine proceedings brought in the General Division and the Family

Division and for that purpose the chief justice is a judge of the General Division

and the Family Division.

(5) In this Part, a reference to the General

Division or the Family Division shall be considered to be a reference to the

Trial Division - General Division or the Trial Division - Family Division.

Section 23 of the Act is repealed and the

following substituted:

Jurisdiction

23. The Trial Division has jurisdiction over

all civil and criminal proceedings that were within the jurisdiction of the

Trial Division of the Supreme Court of Newfoundland and Labrador and the Unified Family

Court immediately before the commencement of this

section , including all

proceedings pending in the Trial Division and Unified Family Court.

Section 27 of the Act is repealed and the

following substituted:

Jurisdiction of

judges

(1) Each judge of the Trial Division

may exercise the jurisdiction of the Trial Division and, as it existed

immediately before the commencement of this section, of the Unified Family

Court, that might have been exercised in court or in chambers by a single

judge, or as may be directed or authorized to be heard by the rules.

(2) A judge sitting under subsection (1) is

considered to constitute the Trial Division.

Section 28 of the Act is repealed.

Section 33 of the Act is repealed.

8. The Act is amended by adding immediately after

section 43 the following:

Division 2

Trial Division - General Division

General Division

43.1 The

General Division may sit and exercise its jurisdiction in any place in the

province.

Subject-matter

jurisdiction

43.2 The

General Division has jurisdiction over

(

a) all civil and criminal proceedings, including

pending civil and criminal proceedings, that were within the jurisdiction of

the Trial Division of the Supreme Court of Newfoundland and Labrador

immediately before the commencement of this section;

(

b) all civil and criminal proceedings of original

and appellate jurisdiction that may be conferred on it under

an Act of the

province or

an Act of the Parliament of Canada; and

(

c) all proceedings that are within the

subject-matter jurisdiction of the Family Division in areas in the province not

included in a judicial area or the expanded service area.

Title of

documents

43.3 All

originating applications, documents, notices and other papers issued out of or

used in the General Division of the court shall be entitled as required by the

rules.

Judge may

transfer case to Family Division

43.4

(1) Where

a proceeding is started in the General Division that should have been started

in the Family Division, a judge of the General Division may direct the

proceeding to be transferred to the Family Division, and steps taken by a party

in the proceeding and orders made before the transfer are valid and effective

as if they were made in the Family Division.

(2) Notwithstanding subsections (1) and 43.9(1),

where a matter which would otherwise be within the jurisdiction of the Family

Division under paragraph 43.9(1)(

e) arises incidentally or would affect a

result in a proceeding in the General Division, a judge of the General Division

may proceed to adjudicate that issue but all persons affected shall be given

notice of the proceeding and an opportunity to be heard.

Division 3

Trial Division - Family Division

Judicial area

43.5

(1) In

this Part, "judicial area" means an area which the Lieutenant-Governor

in Council may, by regulation, define as an area in which the Family Division may

exercise its jurisdiction.

(2) The Lieutenant-Governor in Council, after

consultation with the Chief Justice of the Trial Division, may by regulation

designate an area of the province as a judicial area in which the Family

Division shall operate and may expand or contract a judicial area.

(3) Where a judicial area is designated under

subsection (2), the Chief Justice of the Trial Division shall assign a

presiding judge in the designated judicial area.

(4) The judicial area described in

Schedule A of

the Unified Family Court Act, notwithstanding

the repeal of that Act, is considered to constitute a judicial area for the

purpose of this Act as if it had been designated under subsection (2).

(5) The expanded service area described in

Schedule B of the Unified Family Court

Act is continued, notwithstanding the repeal of that Act.

(6) The expanded service area defined in

Schedule

B of the Unified Family Court Act may

be dealt with by the Lieutenant-Governor in Council under this

section as if it

were a judicial area established under this section.

(7) The Family Division may exercise its power and

duties in the expanded service area as if the area were a judicial area designated

under subsection (2).

Family Division judges

43.6

(1) The

Chief Justice of the Trial Division shall assign one or more judges appointed

under subsection 21(1) to the Family Division.

(2) Where more than one judge is assigned to the Family

Division under subsection (1), the Chief Justice of the Trial Division may

designate one of them to be the senior administrative judge of the division.

(3) With the consent of the judge, the Chief

Justice of the Trial Division may re-assign a judge of the Family Division to

the General Division.

(4) A judge sitting alone is considered to

constitute the Family Division.

(5) Where the Chief Justice of the Trial Division

so designates, a judge of the General Division may hold sittings of the Family

Division concurrently in a judicial area or the expanded service area and the

proceedings shall be considered to be before the Family Division.

(6) A judge who, immediately before this

section

came into force, was assigned to the Unified Family Court is considered to have

been assigned to the Family Division under subsection (1).

Geographic jurisdiction

43.7 The

Family Division may sit and exercise its jurisdiction in any place in a

judicial area or the expanded service area.

No jury

43.8 Notwithstanding

section 41, a proceeding in the Family Division shall be heard and decided

without a jury.

Jurisdiction of

court

43.9

(1) The Family Division has and may

exercise the powers and duties possessed by the Trial Division in relation to,

and has and may exercise exclusive jurisdiction in relation to, proceedings in

the following matters taken in a judicial area or the expanded service area,

other than by way of appeal:

(

a) formation of

marriage;

(

b) divorce;

(

c) dissolution

and annulment of marriage;

(

d) judicial

separation and separation orders;

(

e) disputes

in relation to property between spouses, former spouses, partners as defined in

paragraph 35(

c) of the Family Law Act

or former partners and whether seeking relief by way of resulting trust,

constructive trust, unjust enrichment, monetary award or otherwise;

(

f) applications under the Family

Relief Act ;

(

g) declarations

of status including validity of marriage and parentage of a child;

(

h) entitlement

to support arising under the Family Law

Act or the Divorce Act ( Canada );

(

i) enforcement of support orders including reciprocal enforcement of

these orders;

(

j) parenting orders with respect to children;

(

k) adoption;

(

l) protective intervention matters relating to children under the Child, Youth and Family Services Act ;

(

m) interspousal

and familial torts;

(

n) the

consent to medical treatments of minors;

(

o) applications

for the change of name of a minor;

(

p) the

interpretation, enforcement or variation of a marriage contract, cohabitation

agreement, separation agreement or paternity agreement; and

(

q) those

other matters stated as being within the jurisdiction of the Family Division under

an Act of the province or of the Parliament of Canada.

(2) Nothing

in this Act shall be interpreted to derogate from or suspend the powers of the

Provincial Court of Newfoundland and Labrador outside a judicial area or in the

expanded service area referred to in subsection 43.5(5) or to confer upon the

Family Division jurisdiction outside a judicial area or the expanded service

area which the Trial Division would not otherwise have.

(3) The

jurisdiction of the Family Division may be exercised by a presiding judge of

the Family Division or a judge of the General Division who has been designated

by the Chief Justice under subsection 43.6(5).

(4) For

the purpose of paragraph 266(b), sections 740, 810 and 811 of the Criminal Code , a judge of the Family

Division has the powers of a

Provincial Court judge under the Criminal Code in matters arising within a

judicial area or the expanded service area.

(5) In

relation to a proceeding otherwise before him or her, a judge of the Family

Division has jurisdiction to vary or terminate an emergency protection order

issued under

section 5 of the Family Violence

Protection Act .

Judge may transfer

case

43.10

(1) Notwithstanding

section 43.9, a judge of the Family Division may, upon application, order that

a proceeding started in the Family Division be transferred to the General

Division or another appropriate court whether inside or outside a judicial area

or the expanded service area referred to in subsection 43.5(5) where, in the

opinion of the judge, there is a preponderance of convenience for the

proceeding to be dealt with by that division or court.

(2) The provisions of this Act relating to the

transfer of a proceeding to another division or court under subsection

(1) shall apply, with the necessary changes, to that proceeding in the other division

or court.

(3) Where a proceeding that should not have been

started in the Family Division is started in that division, a judge of the Family

Division may direct the proceeding to be transferred to the General Division or

another court, and steps taken by a party in the proceeding and orders made

before the transfer are valid and effective as if they were made in the division

or court in which the proceeding ought to have been started.

Jurisdiction of

court may be extended

43.11 Where

a proceeding is started in the Family Division in a matter over which

jurisdiction may be exercised in the Family Division and it is combined with a

matter within the jurisdiction of the General Division, the Family Division may,

with the consent of the parties, determine and dispose of the combined matters.

Standing in court

43.12

(1) Notwithstanding

subsection 43.9(1), a proceeding may be started in the Family Division only

where the applicant, the respondent or a child involved in the proceeding lives

in a judicial area or the expanded service area but a

proceeding is not required to be started in the judicial area or the expanded

service area by reason only that a respondent or a child involved in the proceeding,

other than an applicant, lives in the area.

(2) A proceeding may be started in the Family Division

where the applicant, the respondent or the child involved in the proceeding

does not live in a judicial area or the expanded service area where a presiding

judge of the Family Division and parties to the proceeding so consent.

Persons excluded

43.13 Where

a judge of the Family Division is of the opinion

(

a) that evidence or information presented to the

court would be seriously injurious or seriously prejudicial to

(

i) the person who is being dealt with in the

proceeding, or

(ii) a person under 16 years of age who is a

witness in or is affected by the proceeding; or

(

b) that it would be in the best interest of the

proper administration of justice to exclude the members of the public from the

court room,

the judge may exclude a person other than

counsel and witnesses from all or part of the proceeding where the judge

considers that person's presence to be unnecessary to the conduct of the

proceeding.

Investigation

43.14

(1) Upon

application, which may be made without notice to another party, a judge of the Family

Division may direct a person who is

(

a) a family counsellor;

(

b) a social worker;

(

c) a probation officer; or

(

d) another person approved by the court for the

purpose,

to make a report on a party to a family

matter before the division or other person who, in the opinion of the judge, is

associated with the matter.

(2) A person directed to make a report under subsection

(1) shall, in the manner that the judge may direct, present the report.

(3) A person shall not present to a judge the

report made under subsection (1) unless, not less than 24 hours before the

report is to be presented, the person serves a copy of the report upon the

parties to the proceeding.

Title of documents

43.15 All originating

applications, documents, notices and other papers issued out of or used in the Family

Division of the court shall be entitled as required by the rules.

Membership in Rules

Committee

43.16 Notwithstanding

section 54 , a presiding judge of the Family Division shall be a member of the

Rules Committee of the Trial Division.

Court order binds

Crown

43.17 The

Crown is bound by an order or judgment issued by the Family Division.

Consequential

Amdt.

(1) Where in

an Act, regulation, rule,

order, by-law, agreement or other instrument or document, a reference is made

(

a) the Unified Family Court; or

(

b) a judge of that court,

the

reference shall be read as a reference to the Trial Division - Family Division where

the Trial Division - Family Division operates, unless the context otherwise requires.

(2) Subsections 2(2) and (3) of the Child, Youth and Family Services Act are

repealed and the following substituted:

(2) Notwithstanding paragraph (1)(g), in the

expanded service area referred to in subsection 43.5(5) of the Judicature Act, "judge" means

a Provincial Court judge.

(3) Notwithstanding

section 43.9 of the Judicature Act , for the purpose of

sections 23 and 25, in a judicial area established under

section 43.5 of the Judicature Act , "judge" means

a judge of the Trial Division - Family Division or a Provincial Court judge.

(3) Subsection 2(2) of the Children's Law Act is repealed and the following substituted:

(2) Notwithstanding the definition of court in

this Act, in a judicial area referred to in

section 43.5 of the Judicature Act, "court" means

the Trial Division - Family Division.

(4) Subsection 2(2) of the Family Law Act is repealed and the following substituted:

(2) Notwithstanding the definition of court in

this Act, in a judicial area referred to in

section 43.5 of the Judicature Act, "court" means

the Trial Division - Family Division.

(5) Section 2.1 of the Family Violence Protection Act is repealed and the following

substituted:

Authority of

judge

2.1 Notwithstanding

sections 43.7 and 43.9 of the Judicature

Act , an application under this Act shall be made to and heard and determined

by a judge in accordance with this Act and the regulations.

(6) Subsection 2(2) of the Support Orders Enforcement Act, 2006 is repealed and the following

substituted:

(2) Notwithstanding the definition of court in

subsection (1), in the judicial area referred to in

section 43.5 of the Judicature Act , "court" means

the Trial Division - Family Division.

Transitional

(1) Where, on the day this Act comes into

force, a proceeding is before the Unified Family Court or a judge of that court

(

a) the proceeding shall be continued before the Trial

Division - Family Division;

(

b) the judge dealing with the proceeding shall

continue to deal with it in his or her capacity as a judge of the Trial Division

- Family Division; and

(

c) all documents required to be filed in or in

connection with the proceeding shall be styled as required by the rules.

(2) Where, on the day a judicial area is

designated under subsection 43.5(2), a proceeding relating to a matter over

which the Family Division has exclusive jurisdiction under

section 43.9 is before

the General Division, the proceeding shall be taken up and concluded in the

Family Division as if it had been started there.

(3) Where, on the day this Act comes into force, a

matter to which paragraph 43.9(1)(

e) applies is before a judge of the General

Division in a judicial area, the matter shall be dealt with by that judge

unless, in his or her discretion it would be appropriate that it be transferred

to the Family Division.

(4) On the day that this Act comes into force, the

records and files of the Unified Family Court, whether relating to a proceeding

that has concluded or not, continue to be the records and files of the Trial Division

- Family Division.

(5) Where, as a result of an appeal, a proceeding

that originated in the Unified Family Court

(

a) has, before or after the day that this Act

comes into force, been referred back to that court to be further dealt with; or

(

b) after the day that this Act comes into force

would, except for this section, have been referred back to that court to be further

dealt with,

the

proceeding shall be dealt with by the Trial Division - Family Division as

though the proceeding had instead been before that court.

(6) Where

a proceeding before the Unified Family Court or a judge of that court is

continued under subsection (1), an affidavit styled in the Unified Family Court

(

a) shall be accepted for filing after the day

that this Act comes into force as if it were sworn or affirmed before the day

that this Act comes into force; or

(

b) may be accepted for filing where it was sworn

or affirmed after the day that this Act comes into force where the judge is

satisfied that it is impossible or that it would result in undue delay or

hardship to have an affidavit sworn or affirmed that is properly styled.

(7) Where, on the day this Act comes into force, a

proceeding to which

section 43.9 applies was before a judge of the Provincial

Court in a judicial area referred to in

section 43.5 and the Provincial Court

judge considers himself or herself seized by the matter, the proceeding shall

be continued and concluded before the judge of the Provincial Court and he or

she has full authority to hear and decide on the matter.

(8) The court may, upon the application of a

person interested in a proceeding before the Supreme Court, give directions

(

a) as to the filing of documents or matters of

procedure in cases for which no provision is made by subsection (1) or (4); and

(

b) for

the purpose of removing or minimizing a procedural difficulty arising on the

day that this Act comes into force.

RSNL1990 cU-3

Rep.

11. The Unified

Family Court Act is repealed.

Commencement

12. This Act comes into force on a day to be

proclaimed by the Lieutenant-Governor in Council.

Earl G. Tucker, Queen's Printer