Re: B.C. Family Relations Act

Re: B.C. Family Relations Act
Collection
Supreme Court Judgments
Date
1982-01-26
Report
[1982] 1 SCR 62
Case number
16158
Judges
Laskin, Bora; Martland, Ronald; Ritchie, Roland Almon; Beetz, Jean; Estey, Willard Zebedee; McIntyre, William Rogers; Chouinard, Julien
On appeal from
British Columbia
Subjects
Constitutional law
Decision Content
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. 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 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., [1980] 2 W.W.R. 393, (1979), 106 D.L.R. (3d) 601; Labour Relations Board (Sask.) v. John East Iron Works, Ltd., [1949] A.C. 134; Tomko v. Labour Relations Board (Nova Scotia), [1977] 1 S.C.R. 112; Attorney General of Quebec v. Farrah, [1978] 2 S.C.R. 638; Toronto Corporation v. York Corporation, [1938] A.C. 415; Attorney‑General for Ontario v. Victoria Medical Building Ltd., [1960] S.C.R. 32; Reference re the Magistrate’s Court of Quebec, [1965] S.C.R. 772; Reference re The Adoption Act, [1938] S.C.R. 398, considered; In re Vancini (1904), 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), 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, [1932] A.C. 113; Dupont v. Inglis, [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] 1 S.C.R. 714; Rimmer v. Hannan (1921), 60 D.L.R. 637, referred to.
APPEAL from a judgment of the British Columbia Court of Appeal (1980), 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. 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
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; (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., [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 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. 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., [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), [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 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] A.C. 415, at p. 427.
I take as my third example Attorney General of Quebec v. Farrah, [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 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., [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] 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, 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] 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 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 question to which I have nothing to add.
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- 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 (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. 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), 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 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 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. 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) 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 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- 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 prote