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Statutes of Newfoundland and Labrador 2009


CHAPTER 16

AN ACT TO AMEND THE JUDICATURE ACT

(Assented to May 28, 2009)

Analysis


        1.   Division 1 Heading Added
Division 1
General Provisions

        2.   S.20.1Added
Trial Division

        3.   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 3
          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

        9.   Consequential Amdt.

      10.   Transitional

      11.   RSNL1990 cU-3 Rep.

      12.   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.

 

        3. Section 21 of the Act is repealed and the following substituted:

Trial Division

      21. (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.

 

        4. 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.

 

        5. Section 27 of the Act is repealed and the following substituted:

Jurisdiction of judges

      27. (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.

 

        6. Section 28 of the Act is repealed.

 

        7. 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.

        9. (1) Where in an Act, regulation, rule, order, by-law, agreement or other instrument or document, a reference is made to

             (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

      10. (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 of 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.