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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
CHAPTER 5
ACTS OF 1997
The Honourable Alan E. Mitchell
Minister of Justice
AS ASSENTED TO BY THE LIEUTENANT GOVERNOR
DECEMBER 12, 1997
Halifax
Printed by Queens Printer for Nova Scotia
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1989, the Judicature Act, is repealed and the following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) matters arising under the Child Abduction Act;
(o) interspousal and familial torts;
(p) guardianship of the person and property of minors;
(q) consent to medical treatment of minors;
(r) 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;
(s) change of name;
(t) parens patriae jurisdiction;
(u) divorce;
(v) the interpretation, enforcement or variation of a
marriage contract, cohabitation agreement, separation
agreement or paternity agreement;
(w) relief by way of constructive or resulting trust or a
monetary award as compensation for unjust enrichment
between persons who have cohabitated;
(x) 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 Rules, order that a proceeding
commenced in the Family Division be transferred out of
that Division or to another court.
(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 Rules, order that the proceeding be transferred to 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) The contents of a report filed pursuant to subsection (2)
may be received in 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, subject to the regulations, 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.
32I The Governor in Council may make regulations
respecting
(a) mediation and alternate dispute-resolution mechanisms;
and
(b) costs and fees for services provided in the Family
Division.
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 but subject to
Sections 39 and 40, 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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