Re: B.C. Family Relations Act, 1982 CanLII 155 (SCC), [1982] 1 SCR 62

Supreme Court of Canada

Re: B.C. Family Relations Act, [1982] 1 S.C.R. 62

Date: 1982-01-26

IN THE MATTER OF the Constitutional Questions Determination Act

AND IN THE MATTER OF a Reference re Section 6 of the Family Relations Act, S.B.C. 1978, chapter 20 as amended

AND IN THE MATTER OF an Appeal by the Attorney General of British Columbia from the Opinion of the Court of Appeal for British Columbia certified the 26th day of June, 1980

and

The Attorney General for Ontario, the Attorney General of Quebec, the Attorney General of Nova Scotia, the Attorney General for New Brunswick, the Attorney General of Manitoba, the Attorney General for Alberta

and

The Attorney General of Canada

File no.: 16158.

1981: January 28 and 29; 1982: January 26.

Present: Laskin C.J. and Martland, Ritchie, Beetz, Estey, McIntyre and Chouinard JJ.

Constitutional law—Courts—Jurisdiction—Family law—Guardianship of person of the child—Custody and access—Occupancy rights of family residence—Non-entry orders—Whether or not provincial legislation granting provincial court jurisdiction ultra vires under s. 96 of the B.N.A. Act—British North America Act, R.S.C. 1970, Appendix II, s. 96—Family Relations Act, R.S.B.C. 1979, c. 121, ss. 6(1)(a), (b), (d), (e), 23, 25, 31, 32, 33, 34, 35, 37, 52, 77, 78, 79.

Pursuant to s. 6 of the British Columbia Family Relations Act, the Provincial Court had jurisdiction over guardianship of the person of a child, custody of or access to a child, occupancy of the family residence and use of contents, and the making of non-entry orders relating to premises occupied by a spouse, parent or child. The British Columbia Court of Appeal, considering a question referred to it, held these provisions to be ultra vires the province based on s. 96 of the B.N.A. Act. The Attorney General of British Columbia appealed from that judgment.

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Held (Laskin C.J. and Ritchie J. dissenting in part): It is within the authority of the province to confer jurisdiction on the Provincial Court (the judges of which are not appointed by the Governor General) respecting guardianship of the person of the child and custody of or access to the child, but ultra vires that authority respecting orders concerning occupancy and use of the family residence and the making of non-entry orders.

Per Martland, Beetz, Estey, McIntyre and Chouinard JJ.: The statute created a concurrent jurisdiction in respect of guardianship and custody. An exclusive jurisdiction in the superior courts in these fields analogous to that in the legislation under consideration did not exist historically. It was natural, following the assignment of adoption to inferior courts, to find a practice of according powers to summary tribunals in related but less significant fields in family relations such as guardianship and custody. Indeed, guardianship and custody were in essence subsumed by adoption in the classification of family relations.

The purpose and role of s. 96 in the Constitution was not jeopardized by the increasing recognition of the implementation of valid provincial programs through provincial administrative and judicial agencies so long as that assigned to them did not have the effect in substance of conferring a judicial function “broadly conform[ing] to the type of jurisdiction exercised by the superior, district or county courts”.

Per Laskin C.J. and Ritchie J., dissenting in part: Even if the challenged legislation did not result in turning the Provincial Court into a s. 96 court, the jurisdiction conferred by s. 6(1)(a) and related sections of the Family Relations Act could not be validly assumed and exercised by the Provincial Court. Neither a certain concurrency of jurisdiction with the British Columbia Supreme Court nor the subjection of the Provincial Court to review or appeal gave the Provincial Court any basis to encompass s. 96 court functions on the ground that it had not been transformed into such a court.

The jurisdiction conferred under s. 6(1)(a), (b), (d) and (e) did not broadly conform in general to the jurisdiction exercised by inferior courts prior to or at 1867 or in particular to the jurisdiction given the inferior courts under the statutes (save The Adoption Act) in the Adoption Reference. Jurisdiction over each power under review, considered separately, was more analogous and conformable to that of a s. 96 court. This fact

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remained even if the Family Relations Act were to be considered a legislative scheme designed to deal expediently within prudent limits with associated aspects of family relations. The Provincial Court’s relatively easy access was not an answer to the jurisdictional problem.

Polglase v. Polglase et al., 1979 CanLII 691 (BC SC), [1980] 2 W.W.R. 393, (1979), 106 D.L.R. (3d) 601; Labour Relations Board (Sask.) v. John East Iron Works, Ltd., 1948 CanLII 266 (UK JCPC), [1949] A.C. 134; Tomko v. Labour Relations Board (Nova Scotia), 1975 CanLII 183 (SCC), [1977] 1 S.C.R. 112; Attorney General of Quebec v. Farrah, 1978 CanLII 195 (SCC), [1978] 2 S.C.R. 638; Toronto Corporation v. York Corporation, 1938 CanLII 252 (UK JCPC), [1938] A.C. 415; Attorney‑General for Ontario v. Victoria Medical Building Ltd., 1959 CanLII 20 (SCC), [1960] S.C.R. 32; Reference re the Magistrate’s Court of Quebec, 1965 CanLII 46 (CSC), [1965] S.C.R. 772; Reference re The Adoption Act, 1938 CanLII 2 (SCC), [1938] S.C.R. 398, considered; In re Vancini (1904), 1904 CanLII 72 (SCC), 34 S.C.R. 621; In re Small Debts Act (1896), 5 B.C.R. 246; Re Stannard (1858), 1 Chan. Chamb 15; Re McQueen, McQueen v. McMillan (1876), 23 Grant 191; Anonymous (1858), 6 Grant 632; Thomassett v. Thomassett, [1894] P. 295; Re Triskow and Children’s Protection Act (1918), 1918 CanLII 537 (AB SCAD), 43 D.L.R. 452; In re Agar-Ellis. Agar-Ellis v. Lascelles (1883), 24 Ch. D. 317; O. Martineau and Sons, Ltd. v. City of Montreal, 1931 CanLII 387 (UK JCPC), [1932] A.C. 113; Dupont v. Inglis, 1958 CanLII 8 (SCC), [1958] S.C.R. 535; Blayborough v. Brantford Gas Company (1909), 18 O.L.R. 243; Re Davis (1909), 18 O.L.R. 384; Hyman v. Hyman, [1929] A.C. 601; Re Residential Tenancies Act 1979, 1981 CanLII 24 (SCC), [1981] 1 S.C.R. 714; Rimmer v. Hannan (1921), 1921 CanLII 282 (SK CA), 60 D.L.R. 637, referred to.

APPEAL from a judgment of the British Columbia Court of Appeal (1980), 1980 CanLII 427 (BC CA), 116 D.L.R. (3d) 221, 23 B.C.L.R. 152, [1980] 6 W.W.R. 737, finding the statutory provisions referred in a constitutional reference to be ultra vires the province. Appeal allowed in part.

D.M.M. Goldie, Q.C., and E.R.A. Edwards, for the appellant.

Donald S. Moir and Carmela Allevato, opposing the legislation.

D.W. Mundell, Q.C., and Lorraine E. Weinrib, for the Attorney General for Ontario.

Henri Brun, for the Attorney General of Quebec.

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Molly Dunsmuir and Reinhold M. Endres, for the Attorney General of Nova Scotia.

Allan D. Reid and Shauna M. Mackenzie, for the Attorney General for New Brunswick.

John D. Montgomery, Q.C., and Roslyn M. Diamond, for the Attorney General of Manitoba.

Margaret Donnelly and B.A. Crane, Q.C., for the Attorney General for Alberta.

W.I.C. Binnie, Q.C., and Holly Harris, for the Attorney General of Canada.

The reasons of Laskin C.J. and Ritchie J. were delivered by

Reasons of Laskin C.J. and Ritchie J. (Dissenting in Part)

THE CHIEF JUSTICE (dissenting in part)—The Lieutenant Governor in Council of British Columbia by an Order in Council of December 6, 1979, issued pursuant to the Constitutional Questions Determination Act (now the Constitutional Questions Act), R.S.B.C. 1979, c. 63, referred to the Court of Appeal of that province the following question:

Are paragraphs (a), (b), (d) and (e) of subsection (1) of Section 6 of the Family Relations Act, S.B.C. 1978, c. 20, as amended, or any of them, ultra vires the Legislature of the Province of British Columbia?

In a unanimous judgment delivered on behalf of the Court by Hinkson J.A. on June 26, 1980, an affirmative answer was given to the question in respect of all the statutory provisions therein mentioned. The holding of invalidity was based, of course, on s. 96 of the British North America Act, no challenge being offered to the competence of the provincial legislature to enact the substantive terms of s. 6(1)(a), (b), (d) and (e). An appeal as of right was taken to this Court by the Attorney General of British Columbia under s. 37 of the Supreme Court Act, R.S.C. 1970, c. S-19, and the same question was fixed for determination but phrased to require a negative answer if the judgment of the Court of Appeal was to be confirmed.

The statutory provisions in issue read as follows:

6. (1) The Provincial Court has jurisdiction in all matters under this Act, except Part 3, respecting

(a) guardianship of the person of a child;

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(b) custody of or access to a child;

(d) occupancy of the family residence and the use of its contents; and

(e) the making of orders that a person shall not enter premises while they are occupied by a spouse, parent or child.

It will be noticed that para. (c) was not included in the original reference nor is it involved here. That paragraph provides for “maintenance, including the enforcement of maintenance orders” by the Provincial Court. In Polglase v. Polglase et al., 1979 CanLII 691 (BC SC), [1980] 2 W.W.R. 393, (1979), 106 D.L.R. (3d) 601, decided by Hutcheon J. of the British Columbia Supreme Court on October 22, 1979, and which concerned an order in the nature of prohibition to the Provincial Court, it was held that although the Provincial Court could not constitutionally be vested with power to make custody or access orders or non-entry orders or orders respecting occupancy of the family residence, it could be given jurisdiction to make maintenance orders. This jurisdiction was, presumably on that account, not put in issue in the reference, but guardianship of the person of a child, under s. 6(1)(a) of the Act, which was not involved in the Polglase case, was included.

The Family Relations Act, now R.S.B.C. 1979, c. 121, is a wide-ranging statute. It covers matrimonial property, maintenance and support obligations, custody, access and guardianship of children and ancillary provisions to support the main features of the Act. It confirms the jurisdiction of the Supreme Court of British Columbia (subject to the federal Divorce Act) in all matters concerning custody of, access to and guardianship of children, dissolution of marriage, nullity, judicial separation, maintenance and alimony; and then provides that the Supreme Court is to have jurisdiction in all matters under the Act. Concurrent jurisdiction is then given to the Provincial Court under s. 6(1)(a), excluding, however, any inherent parens patriae jurisdiction and excluding

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also jurisdiction under Part 3 of the Act dealing with family assets and the division of property between spouses. There are other provisions of the Act to which I will have occasion to refer later on in these reasons but it is sufficient for the moment to underline the comprehensiveness of the Act in dealing with family relations and with children under ordinary judicial procedures, whether they be those of the Supreme Court or those of the Provincial Court. Although under Part 5 the Provincial Court is directed to act summarily and rules respecting its proceedings are left to the Lieutenant Governor in Council, there is no suggestion in the Act nor was there any by the appellant that the judicial and curial character of the Provincial Court was in any way altered by the Act or that any such alteration could be reflected in the rule-making power.

The Attorney General of British Columbia founded his appeal on two grounds. He urged, first, that the jurisdiction conferred upon a judge of the Provincial Court of British Columbia by virtue of paras. (a), (b), (d) and (e) of subs. (1) of s. 6 of the Act was such as may be validly conferred by the Legislative Assembly of the Province of British Columbia as broadly conforming to a type of jurisdiction generally exercised by courts of summary jurisdiction prior to 1867. His second contention was that if he could not succeed on his first point then he submitted that the legislation was nevertheless valid as not creating a Superior Court within the intendment of the British North America Act, being rather a valid exercise of provincial legislative authority as part of a legislative plan to assist in the resolution of family disputes.

It will be convenient to deal at once with the appellant’s second or alternative point. The submission is, in effect, that so long as the challenged legislation does not result in turning the Provincial Court into a s. 96 court, the jurisdiction conferred by s. 6(1)(a) and related sections may validly be assumed and exercised by the Provincial Court.

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The submission is qualified to a degree by the assertion that it is only if there is a transfer or divesting of a jurisdiction exclusively belonging to a s. 96 court at the time of Confederation that there may be ground for saying that the character of the Provincial Court has been unconstitutionally altered. I do not think that these two positions are fully compatible. What I may term the main position appears to borrow from the administrative law cases, cases which deal with a one-specialty agency, e.g. a labour relations board, and to invite the conclusion that if the character of the agency is not changed by the addition of certain questioned powers, then similarly, the Provincial Court may be invested with additional powers without necessarily being transformed into a s. 96 court.

This assertion is founded upon a misconception of the administrative law cases and, most certainly, is not supported by what I would call the court cases. I take three examples from the administrative law cases. In Labour Relations Board of Saskatchewan v. John East Iron Works, Ltd., 1948 CanLII 266 (UK JCPC), [1949] A.C. 134, the constitutional attack was not as against the overall jurisdiction of the Board but only against the vesting in it of power to order the reinstatement of an employee, the victim of an unfair labour practice, and to direct the payment to him of compensation for the loss suffered by reason of an unjustified discharge. Indeed, the Saskatchewan Court of Appeal found a violation of s. 96 in the conferment of these powers on the Board. The Privy Council reversed, and it is quite clear that even if it had confirmed, the result would have been merely to strip the particular powers from the Board. The character of the Board, as an agency consisting of provincial appointees, could not have carried a function belonging exclusively to a s. 96 court. So too, in Tomko v. Labour Relations Board (Nova Scotia), 1975 CanLII 183 (SCC), [1977] 1 S.C.R. 112, where the issue was whether the Board could be validly invested with power to issue cease and desist orders or restraining orders akin to injunctions. Although this Court held that the power, in the particular institutional setting, was validly conferred, the Tomko case does not

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say that, if the power involved a purely s. 96 court function, the character of the tribunal as an otherwise properly appointed provincial agency would have justified its exercise of the power: cf. Toronto Corporation v. York Corporation, 1938 CanLII 252 (UK JCPC), [1938] A.C. 415, at p. 427.

I take as my third example Attorney General of Quebec v. Farrah, 1978 CanLII 195 (SCC), [1978] 2 S.C.R. 638. There the Province sought to give its Transport Tribunal exclusive and final appellate authority on any question of law arising in the decisions of the Transport Commission (also a provincially‑appointed tribunal) which terminate any matter. The decisions of both tribunals were also protected by privative clauses. Although this Court recognized that it was open to a province to establish an appeal structure in respect of decisions of provincial administrative agencies, it concluded that here there was an attempt to exclude the supervisory jurisdiction of the Superior Courts and, indeed, to substitute an administrative agency for an appellate court. This was a different situation from that involved in the present appeal and, unlike the present case, it did involve a transformation of character but, being only in respect of the particular appellate function, it was that function alone that was struck down.

If, as in my view is the fact, the administrative law cases are against the contention of the appellant on its second or alternative point, certainly the court cases are most emphatically so. Three illustrations will also suffice here. In Toronto Corporation v. York Corporation, supra, the Judicial Committee held that although the Ontario Municipal Board was validly organized as an administrative board with provincial appointees as its members, it could not constitutionally be authorized to construe and vary a water agreement between the two municipalities. I would have thought that if there was any board in Canada with a sufficiently wide administrative jurisdiction whose character would not be imperilled by assigning to

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it a s. 96 court function it would be the Ontario Municipal Board. The answer, however, was “no” in respect of the particular function. Again, in Attorney-General for Ontario v. Victoria Medical Building Ltd., 1959 CanLII 20 (SCC), [1960] S.C.R. 32, this Court held that a Master could not be vested with power to try a mechanic’s lien action (where the matter was not before him merely by way of a reference). His essential character as a provincial appointee involved in judicial administration was not enough to carry a s. 96 court power.

Reference re the Magistrate’s Court of Quebec, 1965 CanLII 46 (CSC), [1965] S.C.R. 772, was a case where an increase in the monetary limit of the jurisdiction of this inferior Court, whose presiding officers were provincially appointed, was supported in this Court. There is no doubt, however, that had this Court concluded that the increase resulted in conferring a s. 96 court authority, it would simply have invalidated the particular grant of authority without impairing otherwise the character of the court; and, correlatively, its primary character as an inferior provincial court could not have enabled it competently to absorb what was a purely s. 96 court function.

It is, of course, important to distinguish what I have called purely s. 96 court functions from other functions that are or may be exercised by s. 96 courts. The latter may be stripped from s. 96 courts without constitutional offence. Even functions which, in a particular context, may be regarded as purely s. 96 court functions may lose that purity if they are placed in a different context or are qualified in their use or thrust. These observations need no embellishment because they are adequately reflected in well-known cases, some of which I have already cited.

The Provincial Court, under the Family Relations Act, retains its essential character as a court,

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and there was no contention that it dealt in any different guise with the package of family law matters confided to it under s. 6(1)(a), (b), (d) and (e) and related provisions. Neither the fact of certain concurrency of jurisdiction with the British Columbia Supreme Court nor its subjection to review or appeal provide any basis for entitling the Provincial Court to absorb s. 96 court functions on the ground that it has not been transformed into a superior, district or county court.

In my opinion, therefore, the appellant fails in its second or alternative contention and I turn now to its principal submission.

That submission, namely, that the jurisdiction conferred upon the Provincial Court by s. 6(1)(a), (b), (d) and (e) of the Family Relations Act conformed broadly to a type of jurisdiction exercised by inferior courts prior to or at 1867, relied heavily on the judgment of this Court in the Reference re The Adoption Act, 1938 CanLII 2 (SCC), [1938] S.C.R. 398. It had the support, as interveners, of the Attorneys General of Ontario, Quebec, Nova Scotia, New Brunswick, Manitoba and Alberta but was opposed by the Attorney General of Canada.

Whether the s. 96 issue in this appeal be framed as it was by Duff C.J. in the Adoption Reference at p. 421 (“does the jurisdiction conferred upon magistrates under these statutes broadly conform to a type of jurisdiction generally exercisable by courts of summary jurisdiction rather than the jurisdiction exercised by courts within the purview of s. 96?”) or by Lord Simonds in the John East Iron Works case, supra, at p. 154 (“Does the jurisdiction conferred by the Act [The Saskatchewan Trade Union Act] on the appellant board broadly conform to the type of jurisdiction exercised by the superior, district or county courts?”) the question of broad conformity cannot be conclusively determined by historical antecedents, especially those based on English legislation, referable to summary or inferior court jurisdiction alone. The historical antecedents are, of course, relevant but where they rest purely on English unitary state

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considerations they must be carefully scrutinized for their rationale. It is not for this Court, by deploring the presence in the Canadian Constitution of such an anomalous provision as s. 96, to reduce it to an absurdity through an interpretation which takes it literally as an appointing power without functional implications. More to the point in historical relevance is a comparison of superior or county and district court and inferior court jurisdiction before or at 1867. The caution sounded by counsel for the Attorney General of Canada against accepting what he called an anomalous jurisdiction vested in an inferior court before 1867 as a ground for justifying an escape from s. 96 has merit. It is not as if jurisdiction vested in an inferior court before 1867 was so vested in contemplation of an eventual federal constitution containing a provision like s. 96. At the same time, the vesting of certain types of jurisdiction in inferior courts rather than in superior courts before 1867 must carry weight in a post-1867 appraisal of the propriety of maintaining such jurisdiction in inferior courts or assigning to them like though not exactly similar jurisdiction.

In the light of the foregoing, I do not think (to take one example) that at a time when there was no Chancery Court in Upper Canada the vesting of a limited guardianship jurisdiction in a Surrogate Court, being regarded as an inferior court, can be taken as supporting the broad guardianship jurisdiction vested in the Provincial Court under s. 6(1)(a) of the Family Relations Act. Especially is this so when a broad general jurisdiction in respect of the guardianship of infants was vested in the Court of Chancery when established in Upper Canada by 1837 (U.C.), c. 2, and was continuously exercised by that Court up to and, indeed, after 1867. I refer to the reasons of Hinkson J.A. on this

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question to which I have nothing to add.

The Adoption Reference

The Adoption Reference

Because of the emphasis of the appellant and of the intervening provincial Attorneys General on the reasons of Duff C.J., speaking for this Court, in the Adoption Reference, it is desirable to examine it in some detail. Four Ontario statutes were involved in the Reference, namely, The Adoption Act, R.S.O. 1937, c. 218, The Children’s Protection Act, R.S.O. 1937, c. 312, The Children of Unmarried Parents Act, R.S.O. 1937, c. 217, and The Deserted Wives’ and Children’s Maintenance Act, R.S.O. 1937, c. 211. The questions referred to the Supreme Court of Canada with respect to these provincial Acts were as follows:

1. With reference to the Adoption Act, R.S.O. 1937, c. 218 has—

(a) the Judge or Junior or Acting Judge of County or District Court;

(b) a Judge of the Juvenile Court designated a Judge by the Lieutenant-Governor in Council pursuant to the aforesaid Act

authority to perform the functions which the legislature has purported to vest in him by the provisions of the said Act, and, if not, in what particular or particulars or to what extent does he lack such authority?

2. With reference to the Children’s Protection Act, R.S.O. 1937, c. 312, has—

(a) the Judge or Junior or Acting Judge of the County or District Court; or

(b) a Police Magistrate or Judge of the Juvenile Court designated a Judge by the Lieutenant-Governor in Council pursuant to the aforesaid Act; or

(c) a Justice of the Peace

authority to perform the functions which the legislature has purported to vest in him by the provisions of the said Act, and, if not, in what particular or particulars or to what extent does he lack such authority?

3. With reference to the Children of Unmarried Parents Act, R.S.O. 1937, c. 217, has—

(a) the Judge or Junior or Acting Judge of a County or District Court; or

(b) a Police Magistrate or Judge of the Juvenile Court designated a Judge by the Lieutenant-

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Governor in Council pursuant to the aforesaid Act

authority to perform the functions which the legislature has purported to vest in him by the provisions of the said Act, and, if not, in what particular or particulars or to what extent does he lack such authority?

4. With reference to the Deserted Wives’ and Children’s Maintenance Act, R.S.O. 1937, c. 211, has—

(a) a Justice of the Peace; or

(b) a Magistrate; or

(c) a Judge of the Juvenile Court

authority to perform the functions which the legislature has purported to vest in him by the provisions of the said Act, and, if not, in what particular or particulars or to what extent does he lack such authority?

The Court answered each question in the affirmative. It is relevant to look at the functions assigned to the various judges and judicial officers under the respective Acts and to consider how they were assessed in the reasons of the learned Chief Justice.

The Adoption Act was but briefly considered in the Reference. One sentence constitutes the only attention given to it by Duff C.J., subject to an indirect reference at the very conclusion of his reasons. After saying that he did not intend to examine the legislation before him in detail, he went on (at p. 418):

Let me first observe that the jurisdiction of the Legislature to pass the Adoption Act appears to me too clear for discussion and I add nothing to that.

Of course, there was jurisdiction to enact that particular measure in its substantive and procedural provisions, and I must take it that the learned Chief Justice’s appreciation also extended to the administration of the Act. Shortly, what the Act did was to provide for applications for adoption and for orders for adoption by “the Court” and there were ancillary provisions which need not be examined here. For present purposes, the key section was s. 9.(1), reading as follows:

9.—(1) The court having jurisdiction to make an adoption order shall be the Supreme Court, or

(i) the judge, or junior, or acting judge of the county or district court; or

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(ii) when designated by the Lieutenant-Governor in Council as a judge within the meaning of this Act, the judge of the juvenile court,

within whose jurisdiction either the applicant or the person to be adopted resides at the time of the application for the order.

No difficulty arises under s. 96 so far as adoption orders were within the jurisdiction of the Supreme Court of Ontario or a county or district court. There is no definition of who may be an acting county or district court judge but, obviously, it could not be a provincial appointee. The difficulty that arises is with respect to the assignment of concurrent jurisdiction in adoption to a judge of the Juvenile Court when designated as a judge, for the purposes of the Act, by the Lieutenant Governor in Council.

Who was a judge of the Juvenile Court? At the particular time, the designation and definition were found in The Juvenile and Family Courts Act, R.S.O. 1937, c. 316. It provided for the establishment of a Juvenile Court in every city, town and county in which the federal Juvenile Delinquents Act was proclaimed and for the appointment of the Juvenile Court Judge by the Lieutenant Governor in Council. The indirect reference by Duff C.J., to which I adverted, concerns the Juvenile Court and is to the following effect (at p. 422):

Now, the Juvenile Court is recognized and, to my mind, properly beyond all doubt recognized as a properly constituted court for the purpose of dealing with offences under the Dominion Juvenile Delinquents’ Act, 1929 (19-20 Geo. V, ch. 46) and the amendments of 1935 and 1936 (25-26 Geo. V, ch. 41, and 1 Edw. VIII, ch. 40).

Jurisdiction under the old law of the Province of Canada in respect of offences by juvenile delinquents was exercisable by two justices of the peace, by a recorder, or by a stipendiary magistrate. A Juvenile Court constituted for exercising this jurisdiction in respect of juvenile offenders is plainly to my mind a court not within s. 96 and it does not become so by virtue of the fact that the officers presiding over it are invested with further jurisdiction of the same character as is validly given to magistrates and justices of the peace.

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This does not, in my opinion, answer the question whether s. 96 is violated by assigning adoption jurisdiction to a Juvenile Court Judge. Certainly, the Parliament of Canada is not inhibited by s. 96 in conferring upon any judicial officers jurisdiction in matters falling within federal competence: see In re Vancini (1904), 1904 CanLII 72 (SCC), 34 S.C.R. 621. Thus, it could properly assign jurisdiction under its Juvenile Delinquents Act to Juvenile Courts established by the province and whose presiding officers were provincial appointees.

Given that Juvenile Courts, staffed as prescribed under the provincial statute, were not s. 96 courts, they would by that very fact be incompetent to exercise a purely s. 96 function. The only general support that can be gleaned from Duff C.J.’s reasons for the exercise of adoption jurisdiction by a designated Juvenile Court Judge is in his statement (at p. 403) that “The statutes before us constitute a part of the legislative measures in Ontario directed to these various ends”. He had earlier defined those ends as including the care of people in distress, including neglected children and deserted wives, and the proper education and training of youth. He then supplemented his assertion of a legislative plan by adding at p. 403 that “It would be competent to the Province of Ontario to put in effect a Poor Law system modelled upon that which prevails in England to-day. The province has not seen fit to do that but in some important respects the statutes that we have to consider embody features of the Poor Law system”.

The concept of a legislative plan was one of the principal bases of the appellant’s position. I shall come to this later in these reasons. I do not, however, see the Ontario Adoption Act as having any but the most tenuous connection with any legislative plan with which the other three challenged statutes in the Adoption Reference may be said to be associated. There is special provision in

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The Adoption Act (s. 3(4)) for the adoption of neglected children, but the Act is general in its sweep and adoption orders have certain property consequences as indicated in the Act.

The intervening Attorney General of Ontario laid great stress on The Adoption Reference and on its support of the jurisdiction conferred in adoption on Juvenile Court Judges. It was for him as for the other intervening provincial Attorneys General, and certainly for the appellant, an important link in their chain of argument. I cannot subscribe to the view that the Adoption Reference, in so far as it upheld the validity of s. 9(1)(ii) of The Adoption Act, is acceptable support for the contentions of the appellant on s. 6(1)(a), (b), (d) and (e) of the Family Relations Act. I regard this aspect of the Adoption Reference as out of line with what was otherwise said there by way of principle.

Not only do I reject any submission that The Adoption Act can be considered in pari materia or as part of a legislative package with the other three statutes included in the Adoption Reference but, taking it alone, I do not see the jurisdiction in adoption, in the general terms in which it was conferred by the Act, as being more conformable to the jurisdiction of an inferior court than to that of a superior or county or district court. There is no doubt that neglected children, and certainly unwanted children, are prime subjects of adoption applications, but looked at from the point of view of the severance of natural parentage and the creation of new parental relationships, with personal and property consequences, I would regard adoption jurisdiction as fitting more appropriately in the catalogue of s. 96 functions than not.

Although The Child Welfare Act, R.S.O. 1970, c. 64, s. 70, which embraces the first three statutes involved in the Adoption Reference appears to have accepted this position by vesting jurisdiction to make adoption orders only in the Supreme

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Court and in the County or District Courts, there is a reversion to the former position in the current Child Welfare Act, 1978, 1978 (Ont.), c. 85, as amended. It strips the Supreme Court and the County and District Courts of jurisdiction to make adoption orders and vests the jurisdiction under s. 71 in the Provincial Court (Family Division) or in the Unified Family Court. The latter was established for a trial period, now extended to July 1, 1982 under The Unified Family Court Act, 1976, 1976 (Ont.), (2nd Sess.), c. 85, as amended. The Unified Family Court is presided over by a County Court Judge or by a Surrogate Court Judge, authorized to exercise the jurisdiction of a Judge of a Provincial Court (Family Division). My view of the matter would lead to the conclusion that general adoption jurisdiction cannot competently be vested in a provincial court.

The second of the referred statutes, The Children’s Protection Act, was said by Duff C.J. at p. 403 to be “Perhaps the most important of these enactments now before us”. There are two passages in his judgment dealing with this Act, with his characterization of it. They are paragraphs widely separated by a very extensive discussion of previous decisions and leading to conclusions which I certainly accept, namely, there are courts outside of s. 96 whose presiding officers may constitutionally be appointed by the province and, further, the jurisdiction of such courts was not frozen as of 1867. He also recognized and approved a proposition of Drake J. in In re Small Debts Act (1896), 5 B.C.R. 246, that no line can be drawn which would enable one to determine over which courts federal appointees must preside and over which courts provincial appointees may preside since every case must depend on the particular circumstances and dealt with when the necessity to do so arises.

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I come back to the two passages in which Duff C.J. characterized The Children’s Protection Act. In the first (at p. 403), he said this:

The plan to which it gives effect is aimed at producing effective cooperation between organized voluntary services and public authorities, police officers, probation officers, justices of the peace, police magistrates, and a special tribunal known as the Juvenile or Family Court. The statute, as well as similar statutes in other provinces, has proved an admirable agency for the purpose for which it was designed.

The second passage is in these terms (at p. 421):

Having regard to the purpose of the Act and its machinery, it appears to me to be precisely the kind of legislation which might be described as the modern counterpart of the Poor Law legislation in those features of it which are concerned with the care of neglected children. With great respect, I am unable to perceive any ground upon which it can be validly affirmed that magistrates exercising jurisdiction under this statute are entering upon a sphere which, having regard to legal history, belongs to the Superior Courts rather than to courts of summary jurisdiction; or that in exercising the functions attributed to them by this legislation they come within any fair intendment of section 96.

It is proper, perhaps, to advert particularly to the circumstance that, by section 26 of the statute, a Supreme Court judge has authority at any time to put an end to the guardianship of a Children’s Aid Society and to return the child to the parents (Re Maker [(1913) 1913 CanLII 597 (ON SC), 28 Ont. L.R. 419.])

The Act provides for the supervision of neglected children, widely defined to include uncared for, abandoned or deserted children, ill-treated children, truant children and so on, and it goes on to provide for their apprehension and for bringing them before a judge, defined to include a magistrate or Juvenile Court Judge designated to be such under the Act by the Lieutenant Governor in Council. Temporary custody orders may be made by the judge pending determination whether the apprehended child is a neglected child. If such a finding is made, the child may be returned to its parents or guardian subject to the supervision of the Children’s Aid Society or may be committed temporarily or permanently to the care and custody of the Children’s Aid Society. If there is

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permanent committal, the Children’s Aid Society as legal guardian is enjoined to find a suitable foster home for the child. There are supplementary provisions, including prohibitions against night loitering by children and for bringing juvenile offenders before a judge who may work with the Children’s Aid Society or industrial schools rather than send the child to prison. In short, as Duff C.J. indicated, this Act deals summarily with a special kind of social problem arising from a sense of communal responsibility to salvage the lives of neglected children.

The third statute in the Adoption Reference, The Children of Unmarried Parents Act, reflects provincial concern for children born out of wedlock by the appointment of officers charged to obtain information about them and to act in their interests if they are uncared for. Moreover, with the consent of such officers, children born out of wedlock who cannot be provided for by their parents may be dealt with as neglected children under The Children’s Protection Act. Apart from the foregoing, The Children of Unmarried Parents Act provides for affiliation orders under which the father and the mother may be required to pay for the maintenance of their child. The provincial officers are charged to see to the enforcement of the maintenance awards.

The fourth statute involved in the Reference, The Deserted Wives’ and Children’s Maintenance Act, empowers a magistrate to make an order against a husband for maintenance of a wife and their children if the wife has been deserted by him without his having made adequate provision for their maintenance.

Duff C.J. gave a joint characterization to the last-mentioned two Acts. This was his assessment [at pp. 418-20]:

As regards the Children of Unmarried Parents Act and the Deserted Wives’ and Children’s Maintenance Act, these statutes, broadly speaking, aim at declaring and enforcing the obligations of husbands and parents to maintain their wives and children and these, self-evi-

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dently, are peculiarly matters for provincial authority. As regards the maintenance of illegitimate children and deserted wives and children, the public responsibility, as already mentioned, rests exclusively with the provinces and it is for the provincial legislatures, and for them alone, to say how the incidence of that responsibility shall be borne. The enactments are closely analogous to certain of the enactments forming part of the Poor Law system as it has developed in England since the time of Elizabeth; and the jurisdiction vested by these statutes in magistrates and judges of the Juvenile Court is not in substance dissimilar to the jurisdiction of magistrates under that system. I agree with the Supreme Court of British Columbia in Dixon v. Dixon [(1932) 46 B.C.R. 375] that there is no little analogy between the pre-Confederation legislation in British Columbia and in Ontario by which the earnings of the wife, which are the property of the husband, can be taken from the husband by a protection order and placed under the control of the wife. I agree with that, on the assumption upon which the argument against this legislation proceeded, that a maintenance order against a delinquent husband at the instance of a deserted wife is to be treated as on the same footing as alimony.

I think, with great respect, however, that the matter is of little importance. The subject is envisaged by these statutes from a different point of view. It is dealt with from the point of view of the obligation of the community and of the husband to the community. That is to say, it recognizes, first, the obligation of the community to protect women and children afflicted by misfortune through the default of their natural protector in the discharge of his natural obligations and, as one means of securing that end, it imposes upon the defaulting father and husband the legal duty enforceable by summary proceedings to support his children and his wife. The statute places the obligation to care for the deserted wife and children on the shoulders of that member of the community whose duty it is to the community as well as to his family to bear the burden…

One further point made against this feature of the statute is that there is no pecuniary limit. This again I regard as of small importance. The jurisdiction is not without limit; it is necessarily limited by the purpose for which the order is made.

It cannot, in my opinion, be said that the challenged provisions of the Family Relations Act are

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based on the same considerations as were found by Duff C.J. to underpin three of the statutes that were before him in the Adoption Reference. (I leave out of consideration The Adoption Act itself for reasons that I have already expressed.) The question of substance that remains is whether, notwithstanding that there is no parallel between what is now before us and what was before Duff C.J., there is reasonable ground to say that there is nonetheless broad conformity in respect of the jurisdiction conferred upon the inferior courts under the statutes in the Adoption Reference and that conferred under s. 6(1)(a), (b), (d) and (e) of the Family Relations Act. I bear in mind, of course, as an accepted principle that the jurisdiction of inferior courts cannot be regarded as forever fixed as it existed at the date of Confederation.

The Submissions from History

The Submissions from History

Apart from heavy reliance upon the Adoption Reference, the appellant and supporting interveners emphasized historical precedents and I wish to examine their bearing on the jurisdictional provisions of s. 6(1)(a), (b), (d) and (e). It will be convenient to do what Hinkson J.A. did and that is to consider each of the challenged paragraphs of s. 6(1) separately. (As already stated earlier, I will come later to deal with all of them collectively as part of an alleged legislative plan that is said to escape s. 96.)

(a) Guardianship of the Person of a Child

Guardianship of the Person of a Child

As defined in the Act, a child is a person who has not reached age 19, and the jurisdiction confided in the Provincial Court under s. 6(1)(a) is exercisable in accordance with the provisions of s. 30, and with reference as well to ss. 22 to 29. I draw attention to the fact that under s. 25(1) guardianship encompasses not only the person of a child but also the estate of the child. Section 25 (2) and (3) is in the following terms:

25. (1) …

(2) Subject to this Act, a guardian of the estate of a child has all powers over the estate of the child as a guardian appointed by will or otherwise had on May 19, 1917 in England under Acts 12, Charles the Second,

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chapter 24, and 49 and 50 Victoria, chapter 27, section 4.

(3) Subject to this Act, a guardian of the person of a child has all powers over the person of the child as a guardian appointed by will or otherwise had on May 19, 1917 in England under Acts 12, Charles the Second, chapter 24, and 49 and 50 Victoria, chapter 27, section 4.

The references to the English statutes mentioned in s. 25(2) and (3) is to the Abolition of Tenures Act, 1660, and to the Guardianship of Infants Act, 1886. They relate, respectively, to the power conferred upon a father of a minor under the former Act to give custody (and hence guardianship) of a minor child to another (the child’s estate also passing under the guardian’s control), but under the latter Act there is wider provision for guardianship (e.g. by the parents jointly and in some cases by the mother) and power is also given to make orders for custody and for rights of access. There is a reference back in s. 4 of the latter Act to the 1660 Act, continuing the powers given therein to guardians over the person and estate of infants. What is particularly relevant, however, is that jurisdiction was vested in the Chancery Division of the High Court of Justice or in the County Court. It had been previously in the Court of Chancery alone.

Despite some ambiguity created by s. 25(1) (a guardian is both guardian of the person of a child and guardian of the estate of the child), I am satisfied (and this was also the view of the appellant in its factum) that the Provincial Court is not given jurisdiction in respect of guardianship of the estate of a child and that this is exclusively for the Supreme Court. Section 6(1)(a) is explicit that the Provincial Court is vested with jurisdiction only with respect to guardianship of the person of a child. There is no carry-over jurisdiction which the Provincial Court can assert; the Supreme Court on the contrary is declared, by s. 5(1) to continue to have jurisdiction in all matters concerning guardianship of children.

I find incongruity in this jurisdictional distinction. To vest exclusive jurisdiction in the Supreme Court with respect to the appointment, removal

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and supervision of the guardian of the estate of a child and to vest concurrent jurisdiction in the Provincial Court respecting guardianship of the person of a child, without any distinguishing elements as to the position, condition or status of the child to support conferment of this concurrent jurisdiction in the Provincial Court seems to me to be impractical and, indeed, an overreaching by the province to favour the Provincial Court. Conceivably, the same person could be appointed guardian of the person and guardian of the estate. The obvious restraint of the province in withholding property jurisdiction from the Provincial Court speaks loudly enough and reinforces my view that guardianship of an infant, which traditionally encompassed also guardianship of the estate, is a jurisdiction which belongs to a s. 96 court unless (which is not this case) the assignment of such jurisdiction (the guardianship of the person of an infant) to the Provincial Court can be based on such special considerations as were canvassed in the Adoption Reference with respect to The Children’s Protection Act and The Children of Unmarried Parents Act; in short, a limited rather than a general jurisdiction.

There is some recognition of this incongruity in s. 31 under which it is the Supreme Court that may require security from “a guardian or guardian of the estate of a child”. Again, under s. 32, a guardian may apply to a court, that is either to the Supreme Court or to the Provincial Court, “for directions concerning a question affecting the child and the court may make the order in this regard it considers proper”. How awkward, if this envisages the jurisdictional distinction above-mentioned! The same distinction presumably arises under s. 33 which concerns resignation of a guardian by leave of the court where he has been appointed by Court order.

I have canvassed the pre-Confederation statutes and cases on jurisdiction in respect of guardianship and I refer to some of them only as a footnote to the full discussion by Hinkson J.A. to which I have already alluded. The fact that the Surrogate Court in Prince Edward Island was given a limited authority under a statute of 1838, c. 15, to appoint

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guardians for minors does not compel the conclusion that such jurisdiction may after Confederation be assigned to a Provincial Court. Similar authority was given to the Surrogate Court in Upper Canada by 22 Vict., 1st Sess., c. 93, and it was held in a number of cases that this did not oust the jurisdiction of the Court of Chancery: see Re Stannard (1858), 1 Chan. Chamb. 15; Re McQueen, McQueen v. McMillan (1876), 23 Grant 191. Indeed, the Court of Chancery regarded its exercise of jurisdiction over infants, including guardianship jurisdiction, as a parens patriae authority to act as it deemed best in the interests of infants: see Anonymous (1858), 6 Grant 632; Thomassett v. Thomassett, [1894] P. 295. In Re Triskow and Children’s Protection Act (1918), 1918 CanLII 537 (AB SCAD), 43 D.L.R. 452, it was referred to by Stuart J. in the Alberta Appellate Division at p. 456 as “this Court’s inherent power to control the guardian who has been substituted for the natural guardian”. I should point out that the Provincial Court is, under s. 6(2) of the Family Relations Act, expressly denied “the inherent jurisdiction described in section 5(3)”, that is to act in a parens patriae capacity, that is preserved for the Supreme Court.

(b) Custody of or Access to a Child

Custody of or Access to a Child

After specifying in s. 34 the persons who may exercise custody over a child (e.g. parents or a parent, a person having a custody order or entitled to custody under a written agreement), s. 35 of the Family Relations Act provides for jurisdiction to make custody or access orders, as follows:

35. (1) On application a court may order that one or more persons may exercise custody over a child or have access to the child.

(2) An order for access may be made whether or not a custody order is made.

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(3) Where a person has not received notice of a proceeding or has not been given opportunity to be heard in the proceeding, custody shall not be granted to that person.

(4) An order for custody or access may include terms and conditions the court considers necessary and reasonable in the best interests of the child.

Again, this is a general jurisdiction. It is related to the best interests of the child (specified also in s. 24) but so are guardianship orders. It is conceivable that custody and access, taken together or separately when orders to that effect are sought, would have no necessary connection with guardianship but s. 23 seems to me to be a practical realization of their interconnection. It reads:

23. (1) Subject to subsection (2), where a person other than the father or mother of a child is granted custody of the child by a court, the court in its order may direct that the superintendent is guardian of the person of the child or that the Public Trustee is guardian of the estate of the child.

(2) An order shall not be made under subsection (1) unless the superintendent or Public Trustee named in the order has been given a prior opportunity to be represented in the proceeding.

Indeed, s. 23(1), in its reference to the Public Trustee as the guardian of the estate of the child, underlines the point I made earlier of the incongruity in the differentiation in jurisdiction between the Provincial Court and the Supreme Court according to whether the concern is with guardianship of the person of the child or guardianship of the estate.

What is urged by the appellant and by supporting interveners is that it is wrong to see custody and access as coming within Provincial Court jurisdiction only in the case of neglected children or children born out of wedlock (as was the case under the Adoption Reference) and wrong also to refuse to recognize jurisdiction in the Provincial Court when the statutory injunction is to consider the best interests of the child. However, if jurisdiction over custody and access, either apart from or in relation to guardianship, was vested to some

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degree (e.g. in respect of fatherless infants, as in Upper Canada under a statute of 1827, c. 6) in an inferior court, custody and access were also the subject of pre-Confederation, jurisdiction vested in superior courts under 1855 (U.C.), c. 126. True, this was a jurisdiction to be invoked by the mother but at that period it was the father who was regarded as the legal custodian; indeed guardian, as was recognized even after Confederation: see In re Agar-Ellis. Agar-Ellis v. Lascelles (1883), 24 Ch. D. 317, at p. 326.

As Hinkson J.A. pointed out in his reasons, the welfare or best interests of the child as the primary consideration in custody and access as in guardianship is not a new principle in its statement in s. 24. It was a principle long acted upon by superior courts and does not provide a basis upon which it can support summary jurisdiction in such matters in the Provincial Court. Having regard to history, both in England and in pre-Confederation legislation here, I would regard questions of custody and access in their generality under s. 6(1)(b) as more analogous, more conformable to the type of jurisdiction of a s. 96 court than to that of a Provincial Court.

(c) Occupancy of the Family Residence and Use of its Contents

Occupancy of the Family Residence and Use of its Contents

The concern under this heading is with the jurisdiction conferred upon the Provincial Court by s. 6(1)(d) of the Family Relations Act. The jurisdiction engages ss. 77 and 78 of the Act. These sections read as follows:

77. (1) An order under this section is for temporary relief pending determination of the rights to the property of the spouses by agreement or by a court having jurisdiction in those matters.

(2) A court may make an order under this section respecting property that is owned or leased by one or both spouses and is or has been

(a) occupied by the spouses as their family residence; or

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(b) personal property used or stored at the family residence.

(3) On application, the court may order that one spouse for a stated period

(a) be given exclusive occupancy of the family residence; or

(b) to the exclusion of the other spouse may use all or part of the personal property at the family residence.

(4) An order under subsection (3) does not authorize the spouse to materially alter the substance of the family residence or personal property. A spouse does not acquire a proprietary interest on the making of an order under this section.

(5) Subject to section 78, a right of a spouse to exclusive occupancy or use ordered under this section shall not continue after the rights of the other spouse, or of both spouses, as owner or lessee are terminated.

(6) Nothing in this section prevents the filing of an entry under the Land (Wife Protection) Act.

78. Where an order for exclusive occupancy or use has been made under section 77, the Supreme Court, on application, may order that the rights of a spouse to apply for partition and sale or to sell or otherwise dispose of or encumber the property be postponed and be subject to the right of exclusive occupancy or use and may, in its order, vary the order made under section 77.

The contention is that the Provincial Court, having a limited authority to grant temporary relief, would not be adjudicating on proprietary rights but would be dealing incidentally with questions of occupancy pending ultimate determination of ownership or rights of property by the Supreme Court, as prescribed by s. 52. The latter is a provision in Part 3 of the Act and is hence outside of the jurisdiction of the Provincial Court.

Of course, a right of occupancy is not ownership but it is a property interest not easily distinguishable from a possessory right, especially when s. 77(3) speaks of orders for exclusive occupancy and use of personal property at the family residence to the exclusion of the other spouse. Again, there is a conferment of general jurisdiction upon the Pro-

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vincial Court, albeit qualified by limiting its orders to temporary relief.

I see no redeeming policy favouring inferior court jurisdiction to justify the differentiation between temporary occupancy orders and orders for final determination of the property interests of spouses. Pre-Confederation English and New Brunswick legislation, considered by Hinkson J.A., and dealing respectively with inferior court jurisdiction over deserting and overholding tenants offers no parallel to what is found in s. 77. Landlord and tenant relationships are not the substance of s. 77 or s. 6(1)(d); rather the relevant matter is the disposition of family assets, a concern for the property relations of spouses. I agree with Hinkson J.A. that what is given in s. 6(1)(d) is a jurisdiction more conformable to that exercised and exercisable by a s. 96 court than that which may be vested in a Provincial Court.

(d) Non-entry Orders

Non-entry Orders

The jurisdiction conferred upon the Provincial Court under s. 6(1)(e) (the making of orders that a person shall not enter premises while they are occupied by a spouse, parent or child) relates to the substantive terms of s. 79 of the Family Relations Act. It is as follows:

79. (1) A court may, on application, order that, while the spouses continue to live separate and apart, one spouse shall not enter premises while the premises are occupied by the other spouse or child in the custody of the other spouse.

(2) Subsection (1) applies whether or not the spouse against whom the order is made owns or has a right to possession of the premises.

There is also a relationship to s. 37 which gives ancillary support to a custody order, as is evident from its terms:

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37. Where a court makes a custody order or a custody order is enforceable by a court, the court may order that a person

(a) shall not enter premises, including premises the person owns or has a right to possession of, where the child resides from time to time;

(b) shall not make contact or endeavour to make contact with or otherwise interfere with either the child or any person having custody of or access to the child; or

(c) where a court concludes that the person named in its custody order may not comply with an order under paragraph (a) or (b), the court may further order that the person

(i) enter into a recognizance, with or without sureties, in such reasonable amount as the court thinks necessary;

(ii) report to the court or person designated for the period of time, and at the times and places, as the court considers necessary and reasonable; or

(iii) deliver up to the court such documents as the court thinks fit

or any combination of these.

Since resort to the Provincial Court under s. 37 is dependent on jurisdiction to make a custody order and such jurisdiction is, in my view, beyond the competence of that Court, I need say no more about s. 37.

What then of s. 79? It too has in it aspects of ancillary relief to support a custody order, as is evident from the very terms of s. 79(1). It, quite reasonably, may be used to support an occupancy right granted as temporary relief under s. 77. The contention of the appellant is that non-entry orders are akin to preventive justice and consequently may competently be assigned to the Provincial Court.

The case law on preventive justice has been canvassed by Hinkson J.A. Apart from the question whether binding over a person to keep the peace falls within the federal criminal law power, a question which does not call for decision here,

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what we have in s. 79 is more akin to injunctive relief than it is to any relief against an apprehended breach of the peace. Moreover, it arises in a different context. There is, moreover, no parallel with the type of injunctive relief (by way of cease and desist orders) which was sustained by this Court in Tomko v. Labour Relations Board (Nova Scotia), supra. The cease and desist orders there were adjuncts of a valid administrative scheme dealing in its central features with matters that had not been cognizable, certainly not in their institutional setting, by any court. In short, I cannot find any basis upon which non-entry orders under s. 79 can be assigned to the Provincial Courts when other matters respecting spousal relationships, especially concerning property, are beyond the Provincial Court’s jurisdiction.

The Submission as to a Legislative Plan

The Submission as to a Legislative Plan

A strong and recurrent contention was made by the appellant in the course of argument, a contention that was endorsed by some at least of the supporting interveners, that the Legislature had reposed the challenged jurisdiction in the Provincial Court under s. 6(1)(a), (b) (d) and (e) (and, indeed, under s. 6(1)(c) which is not before us) as part of a legislative scheme or plan to deal summarily yet within prudent limits with connected aspects of family relations. The contention is advanced by pointing to the provision in the Act for non-curial professional staff to assist in its administration. From this, the conclusion is sought that there is here a social scheme, an integrated plan for dealing with disruptions in family relations and to ensure protection, particularly of children, as well as to secure shelter for disadvantaged spouses and children. The attempted parallel with what was said in the Adoption Reference was put again and again; and further emphasis was lent to this contention by pointing to the exclusion of matters arising under the federal Divorce Act and the hiving off of property disputes from Provincial

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Court jurisdiction.

The fact that there is concurrency of jurisdiction in respect of the challenged matters in both the Provincial Court and in the Supreme Court is a relevant consideration in assessing whether there is here the kind of legislative plan that is asserted by the appellant. It is a concurrency that does not depend upon any differentiation in function between the two courts and, certainly, the employment of adjunct professional or expert staff is not something that is unique to a Provincial Court. The legislative plan is as much one that pays respect to the jurisdiction of the Supreme Court as to that of the Provincial Court.

If I take it that the triggering factor in invocation of jurisdiction under the Act would be family discord or marriage breakdown, there is still the fact that the generality of the jurisdiction forces consideration of the separate elements in 6(1)(a), (b), (d) and (e). Property considerations are very much central to the Act and the Act does not engage the Provincial Court in any direct way in such matters. I have already made it clear in my reasons that the kind of jurisdiction which is given indistinguishably to the Provincial Court and to the Supreme Court is in its separate elements jurisdiction more conformable to that of a s. 96 Court than to a Provincial Court. That being the case, it is no answer to say that the Provincial Courts are more accessible to those who might need relief under the Family Relations Act than is the Supreme Court, especially in the availability of service in outlying areas. This was not an answer in the immediate post-1867 period when communication and accessibility of judicial services were far less advanced than they are at the present time and it is not an answer today.

For all the foregoing reasons, I would dismiss the appeal. There will be no order as to costs.

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The judgment of Martland, Beetz, Estey, McIntyre and Chouinard JJ. was delivered by

Judgment of Martland, Beetz, Estey, McIntyre and Chouinard JJ.

ESTEY J.—I have had the opportunity of reading the Chief Justice’s disposition of this appeal and with respect wish to differ with that disposition in regard to the answers to questions (a) guardianship and (b) custody and access. There is no need to restate the background to the constitutional issue here nor to go over the authorities as all of that has been set out by the Chief Justice.

In my respectful view, the issue here turns around the Reference re The Adoption Act, 1938 CanLII 2 (SCC), [1938] S.C.R. 398, and I therefore go directly to it. The problem, like many arising in constitutional law, has a simple and apparently innocent origin; here it is s. 96 of the British North America Act which states:

96. The Governor General shall appoint the Judges of the Superior, District, and County Courts in each Province, except those of the Courts of Probate in Nova Scotia and New Brunswick.

Behind that simple provision lie many real as well as fanciful theories as to its role and purpose in our Constitution. The generally accepted theory has been that the national appointment of superior, county and district court judges was designed to ensure a quality of independence and impartiality in the courtroom where the more serious claims and issues in the community arise; and an aura of detachment said to be analogous to that of the royal justices on circuit from Westminster is thought to be the aim of the authors of s. 96. See O. Martineau and Sons, Ltd. v. City of Montreal, 1931 CanLII 387 (UK JCPC), [1932] A.C. 113, where Lord Blanesburgh, at p. 121, stated:

…the section is shown to lie at the root of the means adopted by the framers of the statute to secure the impartiality and independence of the Provincial judiciary.

Duff C.J. reviewed the same argument in the Adoption Reference, at pp. 415-16, but evidently did riot find it compelling:

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Before proceeding further, it will be convenient to advert to some general considerations. In the argument addressed to us there is an underlying assumption that the interest of the people of this country in the independent and impartial administration of justice has its main security in sections 96, 97 and 99. Now, there were weighty reasons, no doubt, for those sections, and a strict observance of them as regards the judges of courts within their purview is essential to the due administration of justice. …it would be an extraordinary supposition that a great community like the province of Ontario is wanting, either in the will or in the capacity, to protect itself against misconduct by these officers whom it appoints for these duties; and any such suggestion would be baseless in fact and altogether fallacious as the foundation of a theory controlling the construction of the B.N.A. Act.

Whatever its purpose its presence has raised difficulties of application since Confederation, largely in the field of administrative law with which this case is not, in my view, concerned and in areas where no similar rights or obligations existed in the community at the time of Confederation. In speaking of the section generally, Sir Lyman Duff stated at p. 414 in the Adoption Reference:

My view of the effect of s. 96 as regards such courts existing at the date of Confederation (that is to say, outside the scope of that section) is this: the provinces became endowed with plenary authority under s. 92(14), but, a province is not empowered to usurp the authority vested exclusively in the Dominion in respect of the appointment of judges who, by the true intendment of the section, fall within the ambit of s. 96, or to enact legislation repugnant to that section; and it is too plain for discussion that a province is not competent to do that indirectly by altering the character of existing courts outside that section in such a manner as to bring them within the intendment of it while retaining control of the appointment of the judges presiding over such courts. That, in effect, would not be distinguishable from constituting a new court as, for example, a Superior Court, within the scope of section 96 and assuming power to appoint the judge of it. In principle, I do not think it is possible to support any stricter limitation upon the authority of the provinces, and I do not think what I am saying is in substance inconsistent with what was laid down by Lord Atkin speaking on behalf of the Judicial Committee in Toronto v. York.

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Since Confederation the principal dissertation in the significance and operation of s. 96 has been the judgment in this Court in the Adoption Reference. The Privy Council in Labour Relations Board of Saskatchewan v. John East Iron Works, Ltd., 1948 CanLII 266 (UK JCPC), [1949] A.C. 134, per Lord Simonds at p. 152, referred to earlier discussions of the section and added:

…and more particularly also upon Re Adoption Act of Ontario, in which will be found a judgment of Sir Lyman Duff, lately Chief Justice of Canada, so exhaustive and penetrating both in historical retrospect and in analysis of this topic, that their Lordships would respectfully adopt it as their own, so far as it is relevant to the present appeal.

See also Rand J. in Dupont v. Inglis, 1958 CanLII 8 (SCC), [1958] S.C.R. 535, at p. 542.

In the Adoption Reference the Court was faced with a challenge under s. 96 of the Constitution of four pieces of Ontario legislation: The Adoption Act, R.S.O. 1937, c. 218, The Children’s Protection Act, R.S.O. 1937, c. 312, The Children of Unmarried Parents Act, R.S.O. 1937, c. 217, and The Deserted Wives’ and Children’s Maintenance Act, R.S.O. 1937, c. 211, all of which were admittedly concerned with substantive law within the authority of the provincial legislature. Each piece of legislation purported to vest judicial officers of the County Court and provincially appointed judges, with functions set out in the respective statutes. By the terminology of the day, inherited from the United Kingdom, the courts in which provincially appointed judges sat were described as inferior courts and those described in s. 96 were referred to as superior courts. There was no issue raised that the province could not assign any powers under the four statutes to the superior courts. The only issue was the right of the province to assign such functions as described in each statute to judges of the inferior courts. In the case of each statute, this Court concluded that the functions were validly assigned to provincial judicial appointees and that s. 96 was not offended. We are concerned directly with the comments made concerning the meaning and application of s. 96 as well as the nature of the four provincial statutes

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and the functions to be performed thereunder in the inferior courts.

The approach of this Court in 1938 no doubt reflected the economic straits of the nation at that time, and more particularly the great burden being felt by the provinces and their municipalities in the provision of social services during and towards the close of the great depression. For example, it is stated at p. 403 of the report:

The statutes before us constitute a part of the legislative measures in Ontario directed to these various ends. It would be competent to the Province of Ontario to put in effect a Poor Law system modelled upon that which prevails in England to-day. The province has not seen fit to do that but in some important respects the statutes that we have to consider embody features of the Poor Law system.

The Adoption Act, supra, was a good example. The statute was not rooted in economic conditions, nor was its procedure limited to those who were charges or potential charges on the state. The court was authorized to issue an adoption order relating to an unmarried child under the age of 21 years. The Supreme Court of Ontario and judges of the Juvenile Court, when authorized by the Lieutenant Governor in Council, were nominated by the statute as the judges empowered to hear such applications and, when so minded, to issue the necessary adoption order. It is important to note the history and origin of adoption legislation for as we shall see this was a process entirely unknown to our law in 1867. The first Ontario Adoption Act was passed in 1921 (1921 (Ont.), c. 55); in the United Kingdom in 1926 (1926 (U.K.), c. 29); and in British Columbia in 1920 (1920 (B.C.), c. 2, S.B.C. 1920). Anglin J. had this in mind when he stated in Blayborough v. Brantford Gas Company (1909), 18 O.L.R. 243, at p. 243 (H.C.):

“The law of England, strictly speaking, knows nothing of adoption, and does not recognize any rights, claims or duties arising out of such a relation, except as arising out of an express or implied contract”.

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This is a quotation of the statement in Eversley on Domestic Relations, 3rd ed., p. 514. See to the same effect Riddell J. in Re Davis (1909), 18 O.L.R. 384 (H.C.), at p. 386. Thus the statute of Ontario in 1937 introduced entirely new law. See, for example, s. 6 which makes provision for the change of status of the infant.

6.—(1) Upon an adoption order being made, the child shall, unless the adopting order otherwise provides, assume the surname of the adopting parent and all rights, duties, obligations and liabilities of the parent or parents, guardian or guardians of the adopted child, in relation to the future custody, maintenance and education of the adopted child, including all rights to appoint a guardian or to consent or give notice of dissent to marriage shall be extinguished, and all such rights, duties, obligations and liabilities shall vest in and be exercisable by and enforceable against the adopting parent as though the adopted child was a child born to the adopting parent in lawful wedlock, and in respect of the same matters and in respect of the liability of a child to maintain its parents the adopted child shall stand to the adopting parent in the position of a child born to the adopting parent in lawful wedlock; provided that, in any case where a husband and wife are the adopting parents, they shall in respect of the matters aforesaid and for the purpose of the jurisdiction of any court to make orders as to the custody and maintenance of and right of access to children stand to each other and to the adopted child in the same relation as they would have stood if they had been the lawful father and mother of the adopted child, and the adopted child shall stand to them respectively in the same relation as a child would have stood to a lawful father and mother respectively.

(originally enacted in the 1921 Act, supra)

For a discussion of the effect of these provisions in The Adoption Act, supra, see M.E. Hughes, “Adoption in Canada”, in Studies in Canadian Family Law, Mendes da Costa (Toronto 1972), at p. 104. In his factum as counsel in the Adoption case, supra, J.C. McRuer, Q.C., later C.J.H.C. Ont., after reviewing the statute and the cases, concluded:

It is submitted, therefore, that the legislature of the Province of Ontario has by The Adoption Act created an

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entirely new jurisdiction not formerly enjoyed by any superior, district or county court.

Duff C.J. at p. 418 in dealing with The Adoption Act then before the Court, stated:

Let me first observe that the jurisdiction of the Legislature to pass the Adoption Act appears to me too clear for discussion and I add nothing to that.

I deal with The Adoption Act in some detail because while it deals with a subject matter not within the context here, nevertheless the importance and consequences of the adoption process in the community generally and as regards the subject child particularly, are so great as to envelope the questions raised in guardianship and custody. Indeed these three relationships are but rungs on the ladder of family relationships, each with characteristics and consequences more far-reaching than the one below, the lowest rung being custody and access, the highest being adoption. The finding of authority in the province to assign the judicial function in a process, undoubtedly within the provincial legislature’s competence, to the summary procedure courts established by the province must surely be of some constitutional aid in discovering the propriety of like action in relation to guardianship and custody.

Under The Children’s Protection Act, supra, the courts were authorized upon the application of designated public authorities to bring a child before the court before a judge who may “make an order” committing the child to the care of the Children’s Aid Society. Section 9 of that Act provided:

9. The superintendent of any infants’ or children’s home or other public institution having the custody of children may bring before the judge any child who is neglected or deserted by his parents, or who is an orphan requiring guardianship, and the judge may make an order committing the child to the care of a children’s aid society under the provisions of this Act. [Emphasis added.]

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Section 13 of the Act went on to provide that where a child has been so permanently committed, the children’s aid society

…shall be the legal guardian of such child, until such child has attained the age of twenty-one years or is adopted under the provisions of The Adoption Act, or some other legal guardian is appointed…

The judge referred to in the statute may be a judge of the county or district court, or magistrate, or judge of the juvenile court “when such magistrate or judge of the juvenile court has been designated by the Lieutenant-Governor in Council a judge within the meaning of this Act”—(s. 1(ƒ)). Duff C.J. referred to this Act at p. 421:

Having regard to the purpose of the Act and its machinery, it appears to me to be precisely the kind of legislation which might be described as the modern counterpart of the Poor Law legislation in those features of it which are concerned with the care of neglected children. With great respect, I am unable to perceive any ground upon which it can be validly affirmed that magistrates exercising jurisdiction under this statute are entering upon a sphere which, having regard to legal history, belongs to the Superior Courts rather than to courts of summary jurisdiction; or that in exercising the functions attributed to them by this legislation they come within any fair intendment of section 96.

The Deserted Wives’ and Children’s Maintenance Act, supra, provided for orders of maintenance by a court, where a wife has been deserted by her husband and it appears that he has deserted his wife “without having made adequate provision for her maintenance and the maintenance of his children residing with her…” and “the magistrate may order him to pay such weekly sum as may be deemed proper, having regard to all the circumstances…” (s. 1(1)). The same provision is made in s. 2 with reference to a father “who has deserted his child”. In this statute there is no reference made to any charge on the community at large nor to any other provisions which would indicate that the statute was available only in the case of fathers and husbands who were economically unable to care for spouse or child or who might otherwise be in circumstances analogous to those of the Poor Laws of England.

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In the case of The Children of Unmarried Parents Act, supra, a judge of the county court or magistrate or judge of the juvenile court designated by the Lieutenant Governor in Council may make an order declaring a person to be the father of a child and requiring that person to pay maintenance as determined by the court, having regard to the circumstances of the case; and may, in the court’s discretion, direct that the mother of the child born out of wedlock shall contribute to its maintenance. The statute establishes summary procedures for the enforcement of orders issued under the Act, including the collection of moneys directed to be paid for the maintenance of children. With reference to these two statutes Duff C.J., at pp. 418-19, stated:

As regards the Children of Unmarried Parents Act and the Deserted Wives’ and Children’s Maitenance Act, these statutes, broadly speaking, aim at declaring and enforcing the obligations of husbands and parents to maintain their wives and children and these, self‑evidently, are peculiarly matters for provincial authority. As regards the maintenance of illegitimate children and deserted wives and children, the public responsibility, as already mentioned, rests exclusively with the provinces and it is for the provincial legislatures, and for them alone, to say how the incidence of that responsibility shall be borne.

While the Court goes on to observe that these statutes are closely analogous to certain statutes forming part of the Poor Law system as it developed in England, the last two mentioned statutes do not find any basis in the economic status of the children or the parents, or even in the theory that the community is passing along its burden to the parents if it can do so. Rather, the province in its statutes has determined where the responsibility for support for spouses and children lies and has established a summary process for the provision of such support. Duff C.J. in fact concludes at p. 419, that:

a maintenance order against a delinquent husband at the instance of a deserted wife is to be treated as on the same footing as alimony.

After the four statutes referred to the Court had been classified for the purpose of applying s. 96 to

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determine the propriety of the assignment of the judicial administration of those statutes to courts presided over by provincially appointed judges, the Court proceeded to reach certain conclusions on the principles to be applied in making such a determination. It was settled (at p. 403) even before 1938 that the province is competent in those areas of family relations covered by the four Ontario statutes:

The responsibility of the state for the care of people in distress (including neglected children and deserted wives) and for the proper education and training of youth, rests upon the province;…

The province could have made provision for these community interests in the mould of the Poor Law system of the United Kingdom but was not limited to applying those ancient legislative solutions (at pp. 403-4):

The practical problem raised by this reference is whether or not it is competent to the province to invest the officers presiding over these special tribunals, as well as justices of the peace and police magistrates, with the powers of summary adjudication conferred upon them by the statute, or whether, on the other hand, as is contended by those who attack the legislation, they are disabled in some important respects by Section 96 of the B.N.A. Act from taking advantage of this convenient summary procedure which has proved so efficacious.

The starting point in the determination of the application of s. 96 as a restraint on the provincial freedom of action is expressed by Duff C.J. (at p. 404):

Now, it seems to be indisputable that sections 96 and 97 of the British North America Act contemplate the existence of provincial courts and judges other than those within the ambit of section 96.

The significance of courts of summary procedure in our system of judicial administration must be appreciated before the proper limits of s. 96 can be discerned. Duff C.J. put it this way (at p. 415):

But throughout the whole of this country magistrates daily exercise, especially in the towns and cities, judicial powers of the highest importance in relation more particularly to the criminal law, but in relation also to a vast body of law which is contained in provincial statutes and municipal by-laws. The jurisdiction exercised by these functionaries, speaking generally, touches the

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great mass of the people more intimately and more extensively than do the judgments of the Superior Courts;

After referring to the effect of s. 129 of the British North America Act on laws of the confederating colonies, and in particular those establishing the authority of magistrates and justices of the peace, His Lordship observed (at p. 413):

The B.N.A. Act, therefore, by its express terms provided for the continuance of courts possessing civil jurisdiction which were not within the scope of section 96 and concerning the powers of which the provinces had exclusive authority in virtue of section 92(14).

The provinces acquired plenary authority, not only to diminish the jurisdiction of such courts, but also to increase it, subject only to any qualification arising in virtue of s. 96.

That a province could not indirectly offend the section by so augmenting the jurisdiction of an inferior court so as to bring within its jurisdiction matters pertaining to the jurisdiction of a superior court while still retaining the power to appoint the judge, was likewise obvious.

That, in effect, would not be distinguishable from constituting a new court as, for example, a Superior Court, within the scope of section 96 and assuming power to appoint the judge of it. In principle, I do not think it is possible to support any stricter limitation upon the authority of the provinces,… [at p. 414].

The Court then made it abundantly clear that the determination of the reach of inferior court jurisdiction, having in mind s. 96, was in no way limited to an ‘1867 test’.

In effect, it was argued before us that provincial legislation is repugnant to section 96 if in any particular the jurisdiction of one of these courts of summary jurisdiction existing at the date of Confederation is increased. That, in my view, is quite inadmissible in principle as it is incompatible with practice and authority since Confederation with the exception of one or two decisions in very recent years which are put upon the authority of Martineau’s case [at p. 415].

This line of reasoning lead naturally to the proposition basic to the judgment in the 1938 Adoption Reference (at p. 418):

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Then, it should be observed that, if you have a provincial court outside the scope of s. 96 and the province enlarges its jurisdiction or its powers, but not in such a manner as to constitute a court of a class within the intendment of s. 96, I, as a judge, charged solely with the application of the law, have no further concern with what the legislature has done. It is no part of my function as a judge to consider whether, if the province should go on enlarging the jurisdiction and powers of the court, it might arrive at a point when the tribunal would cease to be one outside the ambit of s. 96.I have nothing to do with that.

It was argued at length before this Court that the jurisdiction of inferior courts, engaged as they are in what has been somewhat loosely referred to as summary process, are somehow confined to family relations in those circumstances where all or part of the family have become or might become a charge on the community; in short a ‘poor law’ ceiling on the operations of the provincially appointed judges which prevents their courts from entertaining those same proceedings when they concern that part of the community neither destitute nor likely to become a charge on the community. On this aspect the remarks of Duff C.J. (at pp. 419-20) are again relevant to this appeal:

The subject is envisaged by these statutes from a different point of view. It is dealt with from the point of view of the obligation of the community and of the husband to the community. That is to say, it recognizes, first, the obligation of the community to protect women and children afflicted by misfortune through the default of their natural protector in the discharge of his natural obligations and, as one means of securing that end, it imposes upon the defaulting father and husband the legal duty enforceable by summary proceedings to support his children and his wife. The statute places the obligation to care for the deserted wife and children on the shoulders of that member of the community whose duty it is to the community as well as to his family to bear the burden.

The duty of the parent being both private and public it can be enforced by the state or by the beneficiary of the statute (Hyman v. Hyman, [1929] A.C. 601, at p. 628) and the forum may be the same, that is a court entertaining summary proceedings. But all of this is reduced to the clearest terms at the close of the judgment where

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it is stated (at pp. 420-21), with particular reference to The Deserted Wives’ and Children’s Maintenance Act but following a lengthy discussion of all four statutes:

In Clubine v. Clubine, [1937 CanLII 137 (ON CA), [1937] O.R. 636] the Court of Appeal for Ontario, following the judgment of the Court of Appeal for Alberta in Kazakewich v. Kazakewich, [1936 CanLII 387 (AB SCAD), [1936] 3 W.W.R. 699], held that section 1 (1) of the Deserted Wives’ and Children’s Maintenance Act is ultra vires on the ground that it is beyond the powers of a provincial legislature to invest a court of summary jurisdiction, such as a magistrate’s court, with a jurisdiction theretofore exclusively exercised by a Superior Court of the province. I have given my reasons for thinking that the proposition in that sweeping form cannot be sustained and, with the greatest possible respect, I think, moreover, that the Court of Appeal for Ontario have not given due weight to the special character of the jurisdiction vested in the courts of summary jurisdiction under the Deserted Wives’ and Children’s Maintenance Act, or to the close analogy between that jurisdiction and the jurisdiction exercised for centuries by courts of summary jurisdiction in England and in Canada… the question one must ask oneself is this: does the jurisdiction conferred upon magistrates under these statutes broadly conform to a type of jurisdiction generally exercisable by courts of summary jurisdiction rather than the jurisdiction exercised by courts within the purview of s. 96?

In answering the question the Court found it proper to look to the practice in England but there is no suggestion that this is the exclusive or conclusive recourse.

The essential test, therefore, to be drawn from the Adoption Reference judgment is to ask the question as to whether the jurisdiction conferred upon the inferior court under the statute in question broadly conforms to the type of jurisdiction generally exercisable by courts of summary jurisdiction rather than the jurisdiction exercised by s. 96 courts. In Labour Relations Board of Saskatchewan v. John East Iron Works, Ltd., 1948 CanLII 266 (UK JCPC), [1949] A.C. 134, the Privy Council was called upon to apply s. 96 to the statute establishing a labour relations board in a province. The orders of the Board at least had the appearance of those of a traditional court (in the case in question the order directed reinstatement of discharged employees) and all members of

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the Board were provincially appointed. Lord Simonds, after acknowledging the difficulty of determining “whether one court is ‘analogous’ to another”, proceeded to a determination without making any such finding, that the Board was not a superior court. At p. 152, Lord Simonds stated:

They do not think it necessary to consider whether it is a jurisdiction more nearly analogous to that exercised at the time of confederation by justices of the peace—a matter to which much argument was directed—nor would they pursue the comparison with the jurisdiction of the Workmen’s Compensation Board, which was also pressed on them by counsel. It is sufficient to say that it is not, in their opinion, analogous to that of a superior, district or county court.

Perhaps out of fear that the Privy Council might be misunderstood to have said that while they ‘could not define a superior court, they would know one if they saw it’, His Lordship went on to say (at p. 154):

But they would prefer to put the question in another way, which may be more helpful in the decisions of similar issues, namely, “Does the jurisdiction conferred by the Act on the appellant board broadly conform to the type of jurisdiction exercised by the superior, district or county courts?” In their view, for the reasons already stated, it does not do so. They do not think it necessary to say whether it conforms more nearly to any other jurisdiction existing in 1867.

The test so adopted by the Privy Council in John East is, from the viewpoint of a provincial legislature, more liberal than that of Duff C.J. in the Adoption Reference, for the residual allocation of non-superior court functions falls to the inferior tribunals and not vice versa. It was put this way by the learned author of Constitutional Law of Canada, 1977, P.W. Hogg, at p. 135:

It should be noticed that this is an even more liberal test than that employed by Duff C.J. in the Adoption Reference. To ask whether a lower court or tribunal is exercising a jurisdiction in broad conformity with that of courts of summary jurisdiction, as Duff C.J. did in that case, is to impose historical limits on inferior-court or tribunal jurisdiction by implying that wholly new kinds of jurisdiction must be exercised by higher courts. To turn the

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question over, and ask, as Lord Simonds does, whether the lower court or tribunal exercises a jurisdiction in broad conformity with that of a superior, district or county court is to imply that new kinds of jurisdiction need not be exercised by the higher courts.

In a recent decision of this Court, Re Residential Tenancies Act, 1979, 1981 CanLII 24 (SCC), [1981] 1 S.C.R. 714, Dickson J., at pp. 730-31, concluded that the Adoption Reference case represented a liberalization of the view held by the Privy Council in cases prior thereto and that the John East case, supra, represented a further shift in that viewpoint because:

The formulation of Duff C.J. froze the provincial jurisdiction to that of summary courts. Lord Simonds in John East suggested that it was not absolutely necessary to consider whether there was a true analogy between the impugned jurisdiction and the jurisdiction of summary courts; it would be sufficient, for constitutional purposes, to establish that the power or jurisdiction was not one traditionally falling within s. 96.

Thus we have seen a progressive relaxation of the judicial outlook on the proper application of s. 96 to the legislative programs of the provinces where summary procedure courts are accorded jurisdiction, sometimes exclusive, other times concurrently with superior courts.

A permissive view is, of course, more easily adopted when the constitutional scan is directed to an administrative tribunal operating under a statute which outlines the policy of the legislature and which leaves much of the implementation and application of that policy to a board appointed sometimes with a qualifying background related to the regulated field. But it has almost equal importance and value when the program outlined in the enabling statute lends itself to interpretation and application in the quick and relatively less expensive summary procedures of the so-called inferior tribunals. The rights and duties created by such statutes frequently are of a kind or are directed to

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a sector of the community so as to be better and more expeditiously realized and interpreted by the less formal and less demanding procedures of the provincial court. It is not to denigrate the role of the superior court or its efficacy in the modern community. It is only to say that the highly refined techniques evolved over centuries for the determination of serious and frequently profound difficulties arising in the community are unnecessary for the disposition of much of the traffic directed to the magisterial courts by contemporary provincial legislation. That traffic can sometimes bear neither the cost nor the time which sometimes inevitably must be borne or devoted by the parties to causes in the courts of general jurisdiction (the descendants of the royal courts of justice) and the county courts.

Much has been said in this Court and in the Court of Appeal of a broad, general jurisdiction of the superior courts over custody and guardianship at the time of Confederation. As I understand it, the primary source of this asserted jurisdiction is the inherent jurisdiction of the Chancery Courts by virtue of parens patriae. The origins of the doctrine which are vague have been well summarized in Story’s Equity Jurisprudence, 12th ed., 1877, at paragraph 1333.

Notwithstanding the objections thus urged against the legitimacy of the origin of the jurisdiction, it is highly probable that it has a just and rightful foundation in the prerogative of the Crown, flowing from its general power and duty as parens patriae, to protect those who have no other lawful protector.

It is worthwhile to note that Story saw the parens patriae jurisdiction as extending to those who had no other lawful protector, an indication that the jurisdiction had a more limited scope than that contended for it by the proponents of a broad, general jurisdiction. Its precise extent is illuminated somewhat by reference to Simpson on Infants (London: 1875) (at p. 114):

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The Court of Chancery cannot control the father’s common-law right, except as authorized by statute or on the grounds hereafter discussed; nor had it even the jurisdiction to let the mother have access to the child.

Among the grounds upon which the Chancery Courts had jurisdiction to interfere, Simpson outlined the following (at pp. 138-39):

The following have been held good grounds for interference: cruelty to the wife, for which the husband had been sent to Newgate, combined with general bad character; constant habits of drunkenness and blasphemy, poisoning the mind of the infant; cruelty to the children; the fact that the father was a man of very irregular habits, and had been in prison for debt; open habits of profligacy and adultery; similar habits, conjoined with the father’s deliberately teaching the children to swear and use all kinds of low language; the fact that the father was a man of dissipated and worthless character, and had married a servant; if the father must be taken to have been guilty of an unnatural crime; or has criminally assaulted his daughter, Swift v. Swift.

The following have been held insufficient grounds for interference: occasional acts of what a third person might think to be cruelty, if such cruelty is really little more than harshness; or the fact that the father is a man of passionate temper, and has occasionally given way to acts of severity; or that his conduct is such that his wife cannot happily live with him, if it be not such as to corrupt the morals of the children; or that some time ago he was living a life of idleness, profligacy, and drunkenness; or his living in adultery after a judicial separation from his wife, where he was careful not to bring the children into any contact with the woman.

Reverting to Story’s text, supra, that learned author at paragraph 1341 wrote that the jurisdiction of the Court of Chancery:

extends to the care of the person of the infant so far as is necessary for its protection and education, and as to the care of the property of the infant for its due management and preservation and proper application for his maintenance…

and concludes:

…but it is only in cases of gross misconduct that paternal rights are interfered with.

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Custody, as the term is employed today, did not find judicial expression until comparatively recently. Of course, courts always intervened to protect the child from injury or danger or extreme deprivation but the extent of this jurisdiction in the superior courts is revealed in the use of the writ of habeas corpus in earlier times:

It seems from the language of many judges, that infants will be protected by the court from personal violence, and that if a child be cruelly treated by his father, he will be taken from him upon habeas corpus.

But whether a child, being in the father’s possession, will be taken from him, on account of his having exposed it to contact with improper persons, is extremely doubtful. Lord Eldon considered that a judge on habeas corpus attended to nothing but cruelty or personal ill usage to the child, as a ground for taking it from its father. [MacPherson on Infants, 1843: Philadelphia, at p. 116.]

Thus it can be seen from the above authorities that the scope of the inherent jurisdiction of superior courts at the time of Confederation, so far from being broad and general, was at best coextensive with the jurisdiction which has been conceded to the summary process courts in relation to The Children’s Protection Act in the Adoption Reference (see Duff C.J., at p. 421) and which was analogized by this Court to the jurisdiction of magistrates under the English Poor Laws.

Not only was the superior court jurisdiction not broad; neither was it exclusive.

The power to appoint a guardian was given to the Surrogate Court in Upper Canada in 1827 by 1827 (U.C.), c. 6, and was re-enacted in 1859 in an act entitled An Act respecting the appointment of Guardians and the Custody of Infants, C.S.U.C. 1859, c. 74, s. 1 of which provided in part:

The right of appointing guardians of infants (such infants not having a father living or any legal guardian authorized by law to take care of their persons and the charge of their estates), shall belong exclusively to the Surrogate Court for the County within which any such infants reside,…

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The Surrogate Courts Act, 1858, 1858 (U.C.), c. 93, provided in s. 63:

The right of appointing guardians shall belong exclusively to the Surrogate Court for the County within which such infants shall reside,…

As to the status of a surrogate court in these times, see Rimmer v. Hannan (1921), 1921 CanLII 282 (SK CA), 60 D.L.R. 637 (Sask. C.A.), wherein Lamont J.A., as he then was, stated at p. 642:

A perusal of the Act (R.S.U.C. 1859, ch. 16) satisfies me that they were not Superior Courts.

Similarly in the case of custody. In the Act for the Relief of the Poor, 1601 (Engl.), c. 2, authority was granted to two justices of the peace for granting to others the “apprenticeship” of children where the parents had not the means to maintain them. Reference could also be made to The Industrial Schools Act, 1866, 1866 (U.K.), c. 118. While these acts admittedly contemplated an exercise of jurisdiction by summary courts in different circumstances from those envisaged by the Family Relations Act, the circumstances are not dissimilar to those in which the inherent jurisdiction of the superior courts would be exercised at the time of Confederation.

I seek to draw nothing from this sketch of legal history with reference to guardianship and custody other than the fact that the proponents of the superior courts cannot demonstrate the historic existence of an exclusive jurisdiction in the field of guardianship or custody analogous to that proposed in the legislation now before this Court.

Against this background then we turn to the provisions of the Family Relations Act, supra, relating to guardianship and custody. They are respectively as follows:

25. (1) A guardian is both guardian of the person of the child and guardian of the estate of the child.

(2) Subject to this Act, a guardian of the estate of a child has all powers over the estate of the child as a guardian appointed by will or otherwise had on May 19, 1917 in England under Acts 12, Charles the Second,

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chapter 24, and 49 and 50 Victoria, chapter 27, section 4.

(3) Subject to this Act, a guardian of the person of a child has all powers over the person of the child as a guardian appointed by will or otherwise had on May 19, 1917 in England under Acts 12, Charles the Second, chapter 24, and 49 and 50 Victoria, chapter 27, section 4.

35.(1) On application a court may order that one or more persons may exercise custody over a child or have access to the child.

(2) An order for access may be made whether or not a custody order is made.

(3) Where a person has not received notice of a proceeding or has not been given opportunity to be heard in the proceeding, custody shall not be granted to that person.

(4) An order for custody or access may include terms and conditions the court considers necessary and reasonable in the best interests of the child.

By sections 25 and 35 the “court” is authorized to appoint guardians and to make custody and access orders, respectively.

There is of course no contest as to the constitutionality of these provisions. The jurisdictional provisions in the statute are:

Supreme Court jurisdiction

5. (1) The Supreme Court continues, subject to the Divorce Act (Canada), to have jurisdiction in all matters concerning the custody of, access to and guardianship of children, dissolution of marriage, nullity of marriage, judicial separation, alimony and maintenance.

(2) The Supreme Court has jurisdiction in all matters under this Act.

(3) Nothing in this Act shall be construed as limiting or restricting the inherent jurisdiction of the Supreme Court to act in a parens patriae capacity respecting a child before the court.

Provincial Court jurisdiction

6. (1) The Provincial Court has jurisdiction in all matters under this Act, except Part 3, respecting

(a) guardianship of the person of a child;

(b) custody of or access to a child;

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(c) maintenance, including the enforcement of maintenance orders;

(d) occupancy of the family residence and the use of its contents; and

(e) the making of orders that a person shall not enter premises while they are occupied by a spouse, parent or child.

(2) Nothing in this Act gives the Provincial Court the inherent jurisdiction described in section 5 (3).

By section 1 “ ‘court’ means the Provincial Court exercising the jurisdiction referred to in section 6, or the Supreme Court”.

In the result, therefore, the statute creates a concurrent jurisdiction in respect of guardianship and custody.

Provincial Court process is extended to those who will avail themselves of it while s. 5 of the Act preserves the option in parties of referring such matters to the superior court, should the parties prefer that vehicle. Furthermore s. 5(3) provides that nothing in the Act shall limit or restrict the inherent parens patriae jurisdiction of the Supreme Court.

The history of constitutional development in our courts has been a gradually increasing recognition of the constitutional capacity of the provinces to institute programs within their constitutional spheres which entail the establishment of administrative tribunals or which utilize the facilities of the provincially organized and appointed courts. This development could not be considered surprising bearing in mind the vast transformation of the Canadian community in every respect since 1867. The role of government at large has increased in the community, and the financial resources available to the government at both levels have made possible the implementation of social programs never contemplated by the draftsmen of the British North America Act. To meet the growing responsibilities of the federal and provincial governments the flexibility of the Constitution has been manifest in many areas. Section 96 is perhaps one of the most important illustrations. Its purpose and role in the Constitution is in no way jeopardized by the increasing recognition of the implementation of valid provincial programs through

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provincial administrative and judicial agencies. This will continue to be the case so long as that which is assigned to the provincial body does not have the effect in substance of conferring on that body a judicial function which “broadly conform[s] to the type of jurisdiction exercised by the superior, district or county courts” (John East, supra, at p. 154). In the field of family relations we have seen the adoption processes administered through the summary procedure courts. The consequences of adoption in the life of the child and in his former and new family are of the utmost significance. Indeed, any other mechanisms for change of status are of much lesser significance. In light of the assignment of adoption to inferior courts, it is natural to find as illustrated above a practice in legal history of according powers to the summary tribunals in related but less significant fields in family relations such as guardianship and custody. Indeed, in essence, guardianship and custody are subsumed by adoption in the classification of family relations. It is therefore not surprising to find an increasing legislative practice of assigning the resolution of problems in these areas to the expeditious and highly accessible summary procedures in the provincially organized and appointed courts.

The question as submitted by the Lieutenant Governor in Council under the British Columbia Constitutional Questions Determination Act was:

Are paragraphs (a), (b), (d) and (e) of subsection (1) of Section 6 of the Family Relations Act, S.B.C. 1978, c. 20, as amended, or any of them, ultra vires the Legislature of the Province of British Columbia?

For the reasons given above I would answer the question so framed with reference to s. 6(1) sub-paras. (a) and (b) in the negative.

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The question as framed in this Court by the Chief Justice was:

Is it within the legislative authority of the Province of British Columbia to confer jurisdiction on the Provincial Court (the Judges of which are not appointed by the Governor General) respecting the matters set out in Paragraphs (a), (b), (d) and (e) of subsection (1) of Section 6 of the “Family Relations Act”, Statutes of British Columbia 1978, Chapter 20, as amended, (now Revised Statutes of British Columbia 1979, Chapter 121) namely:

(a) guardianship of the person of the child;

(b) custody of or access to a child;

(d) occupancy of the family residence and the use of its contents; and

(e) the making of orders that a person shall not enter premises while they are occupied by a spouse, parent or child.

I would answer the question when so framed in the affirmative with reference to s. 6(1) subparas, (a) and (b).

Appeal allowed in part, LASKIN C.J. and RITCHIE J. dissenting in part.

Solicitors for the appellant: Russell & DuMoulin, Vancouver.

Solicitor appointed by the Court to represent argument opposed to the validity of the legislation: Donald S. Moir, Vancouver.