E. Fragmentation of Judicial Jurisdiction

Author:Julien D. Payne - Marilyn A. Payne

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The aforementioned distribution of legislative powers contributes to, but is not the sole reason for, fragmentation in the jurisdiction of Canadian courts that adjudicate family disputes.

In most Canadian provinces, two levels of court share the responsibility for resolving family disputes, namely, courts presided over by federally appointed judges and courts presided over by provincially appointed judges. Overlapping and competing jurisdictions exist, especially with respect to spousal and child support and the custody, care, and upbringing of children.

In an effort to redress some of the problems resulting from such fragmentation of judicial jurisdiction, Unified Family Courts or specialized Family Divisions presided over by federally appointed judges have been established in most Canadian provinces. There are two essential features of such courts:

1) The court must exercise an exclusive and comprehensive jurisdiction over legal issues directly arising from the formation or dissolution of the family; and

2) Auxiliary services should be available to the court in the exercise of its judicial functions and also to litigants having recourse to the judicial process. Auxiliary services include information and intake services, counselling and conciliation or mediation services, investigative or assessment services, legal services, and enforcement services.

Pursuant to the recommendations of the Law Reform Commission of Canada and provincial law reform agencies, Unified Family Court projects were first established in the 1970s on a pilot or experimental basis in various urban centres across Canada, including the Richmond, Surrey, and Delta districts in British Columbia; Fredericton, New Brunswick; St John’s, Newfoundland; Hamilton, Ontario; and Saskatoon, Saskatchewan. Internal and external evaluations of several of these pilot projects attested to their success in promoting the resolution of spousal and family disputes20and they have provided models for more permanent specialized family courts presided over by federally appointed judges. In 1983, Manitoba established a Family Division of the Court of Queen’s Bench but its jurisdiction was in-

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itially confined to Winnipeg.21Its jurisdiction has since been expanded to additional judicial centres, including Brandon, Selkirk, Morden, Portage la Prairie, Dauphin, Swan River, Flin Flon, The Pas, and Thompson). In New Brunswick, the Family Division of the Court of Queen’s Bench...

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