The Queen s Bench Act

Transcription

1 1 QUEEN S BENCH c. Q-1 The Queen s Bench Act Repealed by Chapter Q-1.1 of the Statutes of Saskatchewan, 1998 (effective July 1, 1999). Formerly Chapter Q-1 of the Revised Statutes of Saskatchewan, 1978 (effective February 26, 1979) as amended by the Revised Statutes of Saskatchewan, 1978 (Supplement), c.56 and 57, and the Statutes of Saskatchewan, , c.91; , c.62 and 75; 1983, c.59 and 80; , c.16 and 54; , c.2, 16, 38, 47, 77 and 81; , c.18 and 54; , c.7; , c.c-8.1, F-6.1, 35 and 41; 1992, c.62; 1993, c.p-6.2 and 17; 1994, c.20 and 27; 1996, c.9 and 57; 1997, c.s-50.11; and 1999, c.8. NOTE: This consolidation is not official. Amendments have been incorporated for convenience of reference and the original statutes and regulations should be consulted for all purposes of interpretation and application of the law. In order to preserve the integrity of the original statutes and regulations, errors that may have appeared are reproduced in this consolidation.

2 2 c. Q-1 QUEEN S BENCH

3 3 QUEEN S BENCH c. Q-1 Table of Contents 1 Short title SHORT TITLE 2 Interpretation INTERPRETATION ORGANIZATION 3 Continuation 3.1 Family Law Division 4 Title 5 Demise of Crown 6 Seal SEAL OF COURT JUDGES 7 Judges 7.1 Residence of judge 8 Judges have equal power 9 Justice ex officio justice of peace, etc. 10 Oath of office 11 Same 11.1 Repealed JURISDICTION 12 Jurisdiction of the court 12.1 Testamentary jurisdiction 12.2 Practice in testamentary matters 13 Jurisdication, how exercised 14 Judges have powers of late Supreme Court judges 15 Judges have jurisdiction throughout province 16(1) Powers of a single judge in court or chambers 16(2) Powers of a single judge in certiorari proceedings 17 Power to make vesting order 18 Power to relieve against forfeiture 19 Application of section Jurisdiction over lunatics 21 Repealed 22 Repealed 23 Appointment of representative in proceedings FAMILY LAW DIVISION 23.1 Jurisdiction of the Family Law Division Transfer of cause or matter 23.2 Designation of jurisdiction Transfer of proceedings 23.3 Transfer to or from Provincial Court Consolidation of proceedings 23.4 Counselling and other services 23.5 Custody, access reports 23.6 Informality of proceedings 23.7 Private hearings 23.8 Restraining order 23.9 Appeal JUDICIAL SEPARATION 24 Repealed 25 Grounds for judgment of judicial separation 26 Jurisdiction of court to hear actions for judicial separation, etc. 27 Where judgment of judicial separation shall not be granted 28 Conduct conducing to adultery 29 to 33 Repealed 34 Disposition of property of marriage settlement by court 35 Settlement of property of spouse upon judgment being granted 36 Repealed 37 Repealed 38 Injunction re disposal of property 39 Repealed 39.1 Repealed 40 Repealed 41 Power to allow intervention on terms 42 Actions restraining obscene publications SITTING EN BANC 43 When court sits en banc 44 Rules 45 Rules RULES OF LAW INTEREST 46 Interest payable as heretofore 47(1) When allowable on debts certain and overdue 47(2) When allowable after demand of payment 47(3) Interest by way of damages in certain actions 47(4) Interest on judgments 47.1 Limitation of application of sections 46 and 47 CERTIFICATE OF LIS PENDENS 48 Actions, etc., not notice unless certificate registered 49 Order vacating certificate on failure to prosecute action PHYSICAL EXAMINATION OF PARTIES 50 Examination of party by medical practitioner TENDER OF AMENDS IN CASE OF TORTS 51 Effect of tender JUDICIAL CENTRES 52 Judicial centres ENTRY AND TRIAL OF ACTIONS 53 Where action to be brought and tried 54 Tort committed outside province MEDIATION 54.1 Mediation re family law proceedings 54.2 Mediation re non-family law proceedings 54.3 Evidence not admissible 54.4 Mediator not liable 54.5 Application of mediation OFFICERS 55 Registrar 55.1 Deputies, Bankruptcy Act (Canada) 56 to 59 Repealed 60 Fees, charges, levies SHORTHAND REPORTERS 61 Appointment and duties 62 to 67.1 Repealed TRIAL AND PROCEDURE 68 to 71 Repealed 72 Powers of judge in chambers sitting in court 73 New trials 73.1 Service on Sunday 74 Trial with assessors 74.1 Appraisal reports

4 4 c. Q-1 QUEEN S BENCH DIRECTIONS FOR PAYMENT OF MONEYS RECOVERABLE UNDER JUDGMENT 75 Interpretation 76 Powers of judge after judgment pronounced at trial 77 Powers of judge where judgment reserved or where no trial 78 Application not a bar to appeal from judgment 79 Copy of directions to be delivered to sheriff 80 Proceedings on default in payment 81 Costs 82 Powers to vary or rescind orders 83 Service of notices 84 Discretionary powers of judge 85 Procedure on appeals CHAMBERS 86 Chamber sittings, when held 87 Chamber clerk 88 Notice of matters heard at sittings RULES OF COURT 89 Powers of judges SITTINGS OF COURT AND DISTRIBUTION OF BUSINESS 90 Time and place of sittings 90.1 Distribution of business 90.2 Meeting of judges 91 Adjournments 92 Commissions of assize and other commissions 93 Certain practice unaffected APPEALS 94 Judgment by consent or as to costs, no appeal without leave MISCELLANEOUS 95 Transfer of action, etc., commenced at wrong judicial centre 96 Judge deemed to have had jurisdiction in certain cases 97 Determination of nearest judicial centre 98 Transitional, references in Act, etc. 99 Reference to writ in order in other Acts APPLICATIONS FOR PROBATE OR ADMINISTRATION 100 Application for probate or administration 101 Notice of application 102 Duty of registrar re notices 103 Duty of local registrar to prepare documents 104 Proof of execution of will DISPOSAL OF PROPERTY WITHOUT GRANT 105 Disposal of property under $5,000 without grant GRANT OF ADMINISTRATION IN PARTICULAR SITUATIONS 106 Grant to person not next of kin 107 Temporary administration 108 Grant of administration to attorney 109 Appointment of administrator in special circumstances 110 Administration pending litigation SECURITY FOR ADMINISTRATION 111 Bond required 112 Amount of bond 113 Assignment of bonds 114 New or additional security 115 Substitution of security 116 Reduction of security EFFECT OF GRANT 117 Subsequent proceedings 118 Payments by person pursuant to grant 119 Effect of grant of administration on executor REVOKING OF GRANT, RENOUNCING OF PROBATE 120 Payments prior to revocation 121 Effect of revocation on pending actions 122 Renouncing of probate 123 Practice re caveats 124 Notice of caveats CAVEATS CLAIMS OF CREDITORS, DISTRIBUTION OF ASSETS 125 Notice to claimants 126 Distribution of assets 127 Verification of claims and valuation of securities ACCOUNTS OF EXECUTORS AND ADMINISTRATORS 128 Duty to account 129 Approval of accounts binding RESEALING FOREIGN GRANTS 130 Application for resealing 131 Security required on resealing OFFICIAL ADMINISTRATOR 132 Official administrator 133 Neglected property of deceased persons 134 Grant of administration to official administrator 135 Security by official administrator 136 Official administrator required to act 137 Intestacy where estate is under $5, Remuneration 139 Common fund MISCELLANEOUS 140 Production of testamentary documents 141 Jury trials 142 Deposit of wills Editorial Appendix

5 5 QUEEN S BENCH c. Q-1 CHAPTER Q-1 An Act respecting the Court of Queen s Bench SHORT TITLE Short title 1 This Act may be cited as The Queen s Bench Act. Interpretation 2 In this Act: INTERPRETATION (a) action includes suit and means a civil proceeding commenced by statement of claim, or in such other manner as is or may be prescribed by this Act or by rules of court; (b) affidavit or oath includes affirmation where authorized by law; (c) cause includes any action, suit or other original proceeding between a plaintiff and a defendant; (d) court means Her Majesty s Court of Queen s Bench for Saskatchewan; (e) defendant includes every person served with any writ of summons or process, or served with notice of, or entitled to attend, any proceedings; (f) execution creditor includes an assignee of the execution creditor; (f.1) family law proceeding means a cause or matter, whether based on statute law, common law or the inherent jurisdiction of the court, pursuant to or with respect to: (i) (ii) (iii) (iv) (v) The Children s Law Act; The Family Maintenance Act; The Matrimonial Property Act; the Divorce Act (Canada); The Enforcement of Maintenance Orders Act; (vi) The Reciprocal Enforcement of Maintenance Orders Act, 1983; (vii) the determination of parentage or other family relationships; (viii) custody or guardianship of, or access to, a child; (ix) maintenance of a spouse, child or other person;

6 6 c. Q-1 QUEEN S BENCH (x) the division of property between spouses, former spouses or persons who have lived together as spouses; (xi) judicial separations; (xii) annulments; (xiii) sections 25 to 28, 34, 35, 38 and 41 of this Act; (xiv) The Adoption Act; (xv) The Child and Family Services Act; (xvi) The Homesteads Act, 1989; (xvii) The Dependants Relief Act; (xviii) The International Child Abduction Act; (xix) The Marriage Act; (xx) The Parents Maintenance Act; (xxi) The Victims of Domestic Violence Act; (xxii) any other Act that confers jurisdiction on the Family Law Division; (xxiii) any other proceeding heard in the Family Law Division; (g) judgment includes decree; (g.1) letters of administration includes all letters of administration of the property of deceased persons, whether with or without the will annexed and whether granted for general, special or limited purposes; (h) Repealed , c.91, s.3. (i) local registrar means a local registrar of Her Majesty s Court of Queen s Bench for Saskatchewan, and includes his deputy; (j) lunatic includes an idiot or other person of unsound mind; (k) matter includes every proceeding in the court not in a cause; (l) Repealed , c.75, s.3. (m) Repealed , c.75, s.3. (n) party includes every person served with notice of, or attending, any proceedings, although not named in the record; (o) person includes a body corporate or politic; (p) petitioner includes every person making application to the court, either by petition, motion or summons, otherwise than as against a defendant; (q) plaintiff includes any person asking relief, otherwise than by way of counterclaim as a defendant, against any other person by any form of proceedings, whether the same is taken by action, suit, petition, motion, summons or otherwise;

7 7 QUEEN S BENCH c. Q-1 (r) pleading includes a petition or summons and also the statement in writing of the claim or demand of a plaintiff, and of the defence or the counterclaim of a defendant thereto, and of the reply of the plaintiff to a defence or counterclaim of a defendant, and of the defendant s rejoinder to such reply; (s) registrar means the Registrar of Her Majesty s Court of Queen s Bench for Saskatchewan, and includes his deputy; (t) rules of court means the rules provided for by this Act and includes forms; (u) sheriff includes deputy sheriff, duly appointed bailiffs or any other person discharging the duties of sheriff in the particular case or for the time being; (v) testamentary matters includes all matters and causes relating to the granting and revoking of letters probate and letters of administration, including the interpretation of wills; (w) will includes: (i) a testament; (ii) a codicil; (iii) an appointment by will or by writing in the nature of a will in the exercise of a power; and (iv) any other testamentary disposition. R.S.S. 1978, c.q-1, s.2; , c.91, s.3; , c.75, s.3; , c.16, s.28; 1992, c.62, s.3; 1994, c.27, s.3. ORGANIZATION Continuation 3 The superior court of record in and for the province of Saskatchewan having civil and criminal jurisdiction and called Her Majesty s Court of Queen s Bench for Saskatchewan is hereby continued. R.S.S. 1978, c.q-1, s.3. Family Law Division 3.1(1) There shall be a division of the court called the Family Law Division. (2) Family law proceedings brought in the court are to be brought in the Family Law Division. 1994, c.27, s.4.

8 8 c. Q-1 QUEEN S BENCH Title 4 The said Court of Queen s Bench shall during the reign of a queen be called Her Majesty s Court of Queen s Bench for Saskatchewan, and during the reign of a king His Majesty s Court of King s Bench for Saskatchewan; and in all writs, pleadings, petitions, notices, documents and proceedings in the court, the court shall be sufficiently designated by the words In the Queen s Bench or In the King s Bench, as the case may be. R.S.S. 1978, c.q-1, s.4. Demise of Crown 5 No action or other proceeding in any other court shall be discontinued or stayed by reason of the demise of the Crown, but the same shall be proceeded with as if such demise had not happened. R.S.S. 1978, c.q-1, s.5. SEAL OF COURT Seal 6 The Lieutenant Governor in Council may from time to time determine the seal to be used in the court. R.S.S. 1978, c.q-1, s.6; , c.75, s.4. JUDGES Judges 7(1) The court shall consist of a chief justice, who shall be styled the Chief Justice of the Queen s Bench, and 29 other judges; and, subject to this Act and to any rules of court for the time being in force, the court may be held before the chief justice or before any one or more of the judges of the court. (2) The Lieutenant Governor may at any time by proclamation increase or decrease the number of judges of the court and in the case of a decrease may provide for the decrease taking effect upon the occurrence of a vacancy in the court. (3) For each office of judge of the court provided for by subsection (1) or by proclamation under subsection (2), there shall be the additional office of supernumerary judge of the court and each supernumerary judge shall hold himself available to perform such judicial duties as may be assigned to him from time to time by the Chief Justice of the Queen s Bench. (4) Notwithstanding anything in The Court of Appeal Act, the judges of appeal shall not be required to preside over trials of criminal cases, but they may so preside when requested to do so by the Chief Justice of the Queen s Bench. (5) The Chief Justice of the Queen s Bench shall assign six judges of the court to act as judges of the Family Law Division.

9 9 QUEEN S BENCH c. Q-1 (6) The Chief Justice of the Queen s Bench may assign a judge mentioned in subsection (5) to hear causes or matters outside the Family Law Division, but only if the assignment does not prevent that judge from spending the substantial majority of that judge s time hearing causes or matters in the Family Law Division. (7) In addition to the six judges of the Family Law Division, the Chief Justice of the Queen s Bench may assign, from time to time, any judge of the court to act as a judge of the Family Law Division. (8) Every judge of the court, including the Chief Justice of the Queen s Bench and every judge of the Family Law Division, has jurisdiction to hear and determine any cause or matter in the court, including causes or matters in the Family Law Division. R.S.S. 1978, c.q-1, s.7; , c.91, s.4; 1994, c.27, s.5; 1996, c.57, s.3. Residence of judge 7.1(1) Each judge of the court shall reside at any judicial centre or other place in the province that the Lieutenant Governor in Council shall direct but after such direction no judge is required to change his residence unless he consents to the change. (2) Notwithstanding subsection (1), a judge of the court or the District Court for Saskatchewan on the day before the coming into force of this section shall continue to reside at the judicial centre at which he resided on that day and is not required to change his residence pursuant to subsection (1) unless he consents to that change. (3) When directing where a judge shall reside, the Lieutenant Governor in Council shall ensure that at least one judge resides at or in the neighbourhood of each place designated in the regulations for the purposes of this subsection , c.91, s.5; 1996, c.57, s.3. Judges have equal power 8 Save as in this Act otherwise expressly provided, all the judges and their successors shall have in all respects equal power, authority and jurisdiction. R.S.S. 1978, c.q-1, s.8. Justice ex officio justice of peace, etc. 9(1) Each judge of the court is ex officio a coroner, justice of the peace and a judge of the Provincial Court of Saskatchewan and is deemed to have been so appointed. (2) An appointment of a judge as a judge of the Provincial Court of Saskatchewan pursuant to subsection (1) is deemed to authorize him to exercise the jurisdiction conferred upon a magistrate by Part XIX of the Criminal Code, and he shall exercise that jurisdiction , c.91, s.6; , c.35, s.7.

10 10 c. Q-1 QUEEN S BENCH Oath of office 10 The oath to be taken by the chief justice and judges to be hereafter appointed shall be the following: I,, do swear that I will well and truly serve our Sovereign Lady the Queen in the office of Chief Justice (or a Judge) of Her Majesty s Court of Queen s Bench for Saskatchewan, and that I will duly and faithfully, and according to the best of my skill and knowledge, exercise the powers and trusts reposed in me as Chief Justice (or a Judge) of the said court. So help me God. R.S.S. 1978, c.q-1, s.10. Same 11 Every judge of the court shall, before entering upon the duties of his office, take the oath in the form set forth in section 10, which oath shall be administered by the Lieutenant Governor, the chief justice of the court or any puisne judge of the court. R.S.S. 1978, c.q-1, s Repealed. 1992, c.62, s.4. JURISDICTION Jurisdiction of the court 12(1) The court shall be a court of original jurisdiction, and shall in addition to any other jurisdiction, rights, powers, incidents, privileges and authorities that have hitherto been vested in or capable of being exercised within the province by the Supreme Court of Saskatchewan, possess the jurisdiction that in England, prior to The Supreme Court of Judicature Act 1873, was vested in and capable of being exercised by: (a) the High Court of Chancery as a common law court as well as a court of equity, including the jurisdiction of the Master of the Rolls as a judge or master of the Court of Chancery and any jurisdiction exercised by him in relation to the Court of Chancery as a common law court; (b) the Court of Queen s Bench; (c) the Court of Common Pleas at Westminster; (d) the Court of Exchequer as a court of revenue as well as a common law court; (e) the Court of Probate; (f) the courts created by commissions of assize, of Oyer and Terminer and of jail delivery, or any of such commissions. (2) The jurisdiction aforesaid shall include: (a) the jurisdiction that has hitherto been vested in or capable of being exercised by all or any one or more of the judges of the Supreme Court of Saskatchewan;

11 11 QUEEN S BENCH c. Q-1 (b) the jurisdiction that in England, prior to the passing of The Supreme Court of Judicature Act 1873, was vested in, or capable of being exercised by, all or any one or more of the judges of the courts above mentioned sitting in court or chambers or elsewhere, when acting as judge in pursuance of any statute, law or custom; and all powers given to any such court or to any such judges or judge by any statute; and also all ministerial power, duties and authorities incident to any and every part of the jurisdiction so conferred. (3) In respect of the jurisdiction and powers of the Lieutenant Governor as visitor of corporations, conferred by statute or otherwise, the court shall, upon the direction of the Lieutenant Governor, have and exercise the jurisdiction and powers that in England, prior to the passing of The Supreme Court of Judicature Act 1873, were vested in, or capable of being exercised by, the Lord Chancellor representing the Crown as visitor of corporations. (4) The court has, in addition to any other jurisdiction, rights, powers, incidents, privileges and immunities mentioned in this Act or any other Act or law or otherwise vested in, or capable of being exercised by, the court, all the jurisdiction, rights, powers, incidents, privileges and immunities vested in or capable of being exercised by the District Court for Saskatchewan on the day before the coming into force of this subsection unless special provision is made to the contrary in this or any other Act. (5) All jurisdiction and authority in relation to testamentary matters and in relation to all matters arising out of or connected with the grant or revocation of letters probate or letters of administration that was vested in or exercised by the Supreme Court of the Northwest Territories immediately prior to September 16, 1907, shall be exercised in the name of Her Majesty in the court. R.S.S. 1978, c.q-1, s.12; , c.91, s.7; 1992, c.62, s.5. Testamentary jurisdiction 12.1(1) Without limiting the generality of subsection 12(5), the court has full power, jurisdiction and authority: (a) to grant letters probate and letters of administration and to revoke letters probate and letters of administration; (b) to hear and determine all questions, causes and actions in relation to: (i) the granting and revoking of letters probate and letters of administration; and (ii) all other testamentary matters; (c) to require an executor or administrator to bring in his or her accounts of the administration of an estate with respect to which letters probate or letters of administration have been granted, and to examine and pass those accounts;

12 12 c. Q-1 QUEEN S BENCH (d) on passing the accounts of an executor or administrator or on dispensing with the passing of those accounts: (i) to order that the executor or administrator be discharged; and (ii) in the case of an administrator, to order that the bond be cancelled or delivered to the administrator. (2) On an application to pass the accounts of an executor or administrator, the court may conduct a full inquiry concerning, and a full accounting of, all property that the deceased was possessed of or entitled to and the administration and disbursement of it, including inquiry and accounting on the basis of wilful default and neglect, in as full and ample a manner as can be done in an action for administration. (3) For the purposes of subsection (2), the court may take evidence and decide all disputed matters arising in the inquiry and accounting. (4) Subject to this Act, the court has the same powers, and the grants and orders of the court have the same effect, throughout Saskatchewan and in relation to the estates of deceased persons as the Supreme Court of the Northwest Territories and its grants and orders respectively had immediately prior to September 16, 1907, in relation to testamentary matters. (5) All powers and duties that by statute or otherwise were exercised by or imposed on the court mentioned in subsection (4) or a judge of that court with respect to probate, administration and testamentary matters shall be performed by the court and the judges of the court. 1992, c.62, s.6. Practice in testamentary matters 12.2 Unless otherwise provided by this Act or by the rules of court, the practice of the court in matters described in subsection 12(5) and in section 12.1 shall be according to the practice in the Court of Probate in England as it stood on July 15, 1870, so far as the circumstances of the case permit. 1992, c.62, s.6. Jurisdication, how exercised 13 The jurisdiction of the court shall be exercised, so far as regards the procedure and practice therein, in the manner provided by this Act and the rules of court in force in Saskatchewan, or in a manner provided by rules of court made from time to time under the authority of this Act; and as to all matters not expressly provided for by this Act or the said rules, the procedure and practice shall be regulated by analogy, or in such manner as the court upon application, either ex parte or upon notice, shall direct. R.S.S. 1978, c.q-1, s.13.

13 13 QUEEN S BENCH c. Q-1 Judges have powers of late Supreme Court judges 14 When by any law, statute or custom, hitherto in force in Saskatchewan, any jurisdiction, duty, power or authority, whether incident to the administration of justice or not, was conferred or imposed upon the judges of the Supreme Court of Saskatchewan or the District Court for Saskatchewan, or upon any one of them, such jurisdiction, duty, power and authority shall, unless special provision be made to the contrary, be deemed to be conferred and imposed upon the judges of the court, and the same shall be exercised by them in as full and ample a manner as they were heretofore exercised within Saskatchewan by the said judges of the Supreme Court of Saskatchewan or the District Court for Saskatchewan. R.S.S. 1978, c.q-1, s.14; , c.91, s.8. Judges have jurisdiction throughout province 15 Every judge of the court shall have jurisdiction throughout Saskatchewan; and in all causes, matters and proceedings, other than such as are usually cognizable by a court sitting en banc, shall have and exercise all the powers, authorities and jurisdiction of the court. R.S.S. 1978, c.q-1, s.15. Powers of a single judge in court or chambers 16(1) Any judge of the court may, subject to the rules of the court, exercise in court or in chambers all or any part of the jurisdiction by this Act vested in the court in all such causes and matters and in all such proceedings in any causes or matters as in England, before the passing of The Supreme Court of Judicature Act 1873, might have been heard in court or in chambers respectively by a single judge of any of the courts specified in section 12 and whose jurisdiction was thereby transferred to the high court, or as may be directed or authorized to be so heard by rules of court; in all such cases any judge sitting in court shall be deemed to constitute a court. Powers of a single judge in certiorari proceedings (2) Subject to any statute prohibiting or restricting proceedings by way of certiorari, a single judge shall in addition to his other powers have all the powers of the court as to proceedings by way of certiorari over the proceedings, orders, convictions and adjudications had, taken and made by justices of the peace and judges of the Provincial Court of Saskatchewan and in addition thereto shall have the power of revising, amending, modifying or otherwise dealing with the same. R.S.S. 1978, c.q-1, s.16; , c.91, s.9. Power to make vesting order 17 In every case in which the court has authority to order the execution of a deed, conveyance, transfer or assignment of any property, real or personal, the court may by order vest such real or personal estate in such person or persons and in such manner and for such estates as would be done by any such deed, conveyance, assignment or transfer if executed; and, thereupon, the order shall have the same effect as if the legal or other estate or interest in the property had been actually conveyed by deed or otherwise for the same estate or interest to the person in whom the same is so ordered to be vested, or, in the case of a chose in action, as if such chose in action had been actually assigned to such last mentioned person. R.S.S. 1978, c.q-1, s.17.

14 14 c. Q-1 QUEEN S BENCH Power to relieve against forfeiture 18(1) The court shall have power to relieve against forfeiture for breach of a covenant or condition in a lease to insure against loss or damage by fire, where no loss or damage by fire has happened and the breach has in the opinion of the court been committed through accident or mistake or otherwise without fraud or gross negligence, and there is an insurance on foot at the time of the application to the court in conformity with the covenant to insure, upon such terms as to the court may seem fit. (2) The court, where relief is granted, shall direct a record of the relief granted to be made by endorsement on the lease or otherwise. R.S.S. 1978, c.q-1, s.18. Application of section Section 18 shall be applicable in the case of leases for a term of years absolute or determinable on a life or lives or otherwise, and also in the case of a lease for the life of the lessee or the life or lives of any other person or persons. R.S.S. 1978, c.q-1, s.19. Jurisdiction over lunatics 20 In the case of lunatics and their property and estates, the jurisdiction of the court shall, subject to the rules of court, include that which in England is conferred upon the Lord Chancellor by a commission from the Crown under the sign manual. R.S.S. 1978, c.q-1, s Repealed. 1983, c.80, s Repealed. 1983, c.80, s.19. Appointment of representative in proceedings 23(1) Where it appears that a deceased person who was interested in the matters in question has no personal representative, the court or a judge may either proceed in the absence of any person representing his estate or may appoint some person to represent the estate for all the purposes of the action or other proceeding, on such notice as may seem proper, notwithstanding that the estate in question may have a substantial interest in the matters, or that there may be active duties to be performed by the person so appointed, or that he may represent interests adverse to the plaintiff, or that administration of the estate whereof representation is sought is claimed, and the order so made and any orders consequent thereon shall bind the estate of such deceased person in the same manner as if a duly appointed personal representative of such person had been a party to the action or proceeding.

15 15 QUEEN S BENCH c. Q-1 (2) Without restricting the generality of the foregoing, the court or a judge may exercise the powers given by subsection (1) in all proceedings to enforce payment of moneys secured by mortgage of land, or to enforce the observance of the covenants, agreements, stipulations or conditions contained in any such mortgage, or for the sale of the lands mortgaged or to foreclose any estate, interest or claim in or upon the lands mortgaged, or to redeem or discharge land from a mortgage, and in all proceedings by a vendor to enforce the covenants, agreements, stipulations or conditions contained in any contract or agreement for the sale of land, or to put an end to or rescind or cancel the same. R.S.S. 1978, c.q-1, s.23. FAMILY LAW DIVISION Jurisdiction of the Family Law Division 23.1 The Family Law Division shall hear and determine family law proceedings and, in exercising jurisdiction respecting a family law proceeding, a judge: (a) has all the powers and duties of the Court of Queen s Bench and a judge of that court; and (b) may exercise the jurisdiction vested in the Provincial Court of Saskatchewan or a judge of that court. 1994, c.27, s.6. Transfer of cause or matter 23.11(1) A judge, on application or on the judge s own motion, may order that a cause or matter in the Family Law Division be dealt with by the court outside the Family Law Division or transferred to the Provincial Court of Saskatchewan if it also has jurisdiction in the cause or matter where: (a) in the opinion of the judge, it is more convenient for the cause or matter to be dealt with by the court outside the Family Law Division or by the Provincial Court of Saskatchewan; or (b) the cause or matter is not a family law proceeding. (2) A judge, on application or on the judge s own motion, may order that a cause or matter in the court be dealt with in the Family Law Division where: (a) in the opinion of the judge, it is more convenient for the cause or matter to be dealt with in the Family Law Division; or (b) the cause or matter is a family law proceeding. (3) The Provincial Court of Saskatchewan or a judge of that court may order, on application or on the motion of a judge of that court, that a cause or matter in which the Family Law Division also has jurisdiction be transferred to the Family Law Division where the judge or court considers that it is more convenient for the cause or matter to be dealt with in the Family Law Division.

16 16 c. Q-1 QUEEN S BENCH (4) A judge or court making an order pursuant to this section may give any directions for the transfer and make any order as to costs that the judge or court considers appropriate. 1994, c.27, s.6. Designation of jurisdiction 23.2(1) In this section and sections and 23.3, Act means: (a) (b) The Child and Family Services Act; and any other Act designated in the regulations. (2) The Lieutenant Governor in Council may make regulations designating: (a) places or areas in which the Family Law Division has exclusive jurisdiction pursuant to an Act; (b) places or areas in which the Family Law Division has concurrent jurisdiction with the Provincial Court of Saskatchewan pursuant to an Act. (3) Notwithstanding any provision of an Act to the contrary: (a) a proceeding pursuant to an Act in a place or area designated pursuant to clause (2)(a) must be brought in the Family Law Division; (b) a proceeding pursuant to an Act in a place or area designated pursuant to clause (2)(b) may be brought in the Family Law Division or in the Provincial Court of Saskatchewan. (4) Where a proceeding pursuant to an Act is brought in the Provincial Court of Saskatchewan prior to a designation pursuant to clause (2)(a), the Provincial Court retains jurisdiction pursuant to the Act for the purpose of continuing to hear and determine that proceeding. 1994, c.27, s.6. Transfer of proceedings 23.21(1) A proceeding pursuant to an Act that is commenced in the Provincial Court of Saskatchewan in a place or area designated pursuant to clause 23.2(2)(a) prior to that designation is to be transferred, on the request of a party, to the Family Law Division at the nearest judicial centre. (2) The party requesting the transfer shall file with the clerk of the court at the court location where the proceeding is pending a notice requesting that the proceeding be transferred to the Family Law Division at the nearest judicial centre. (3) On receipt of a notice requesting that a proceeding be transferred, the clerk shall immediately forward to the local registrar at the nearest judicial centre the file and all of its contents in the proceeding and, unless otherwise ordered, the proceeding shall be continued at the judicial centre specified in the notice as if it had originally been commenced there.

17 17 QUEEN S BENCH c. Q-1 (4) Any order made by the Provincial Court of Saskatchewan in a proceeding transferred pursuant to this section may be enforced, varied, discharged or otherwise dealt with by the Family Law Division. 1994, c.27, s.6. Transfer to or from Provincial Court 23.3(1) A proceeding pursuant to an Act that is commenced in the Provincial Court of Saskatchewan in a place or area designated pursuant to clause 23.2(2)(b) may be transferred, on application to the Family Law Division, or with the consent of the parties, to the Family Law Division at the judicial centre specified in the order or to which the parties consent. (2) A proceeding pursuant to an Act that is commenced in the Family Law Division in a place or area designated pursuant to clause 23.2(2)(b) may be transferred, on application to the Family Law Division, or with the consent of the parties, to the Provincial Court of Saskatchewan at the court location specified in the order or to which the parties consent. (3) Any order made in a proceeding transferred pursuant to this section may be enforced, varied, discharged or otherwise dealt with by the court to which the proceeding is transferred. 1994, c.27, s.6. Consolidation of proceedings 23.31(1) A judge may direct that a family law proceeding be consolidated or heard together with a cause or matter that is not a family law proceeding. (2) In the directions, the judge shall indicate whether the cause or matter is to be dealt with by the court in or outside of the Family Law Division. 1994, c.27, s.6. Counselling and other services 23.4(1) A judge, on application or on the judge s own motion, may adjourn a family law proceeding where he or she considers that any party to the proceeding or any child affected by the proceeding would benefit from counselling or mediation or professional services. (2) Where a family law proceeding is adjourned pursuant to subsection (1), the judge may order a party to pay all or any portion of the fees and expenses specified in the order for any of the services. 1994, c.27, s.6. Custody, access reports 23.5(1) A judge, on application or on the judge s own motion, may adjourn a family law proceeding and order the preparation of a report for the assistance of the court respecting the custody, access to or welfare of children.

18 18 c. Q-1 QUEEN S BENCH (2) A person who prepares a report for the assistance of the court may, by ex parte order of the court, be called as a witness and: (a) is subject to cross-examination by any party in the proceeding; and (b) is deemed not to be a witness of any party in the proceeding. (3) No action lies or shall be instituted against a person who prepares a report or who is required by the court to make recommendations respecting the custody, access to or welfare of children for any loss or damage suffered by a person by reason of anything in good faith done, caused, permitted or authorized to be done, attempted to be done or omitted to be done by that person in the carrying out or supposed carrying out of that duty. (4) A judge may specify in an order made pursuant to subsection (1) the amount of any charge for the report that each party is required to pay. 1994, c.27, s.6. Informality of proceedings 23.6 A judge, having due regard for the proper administration of justice, shall conduct all family law proceedings as informally as the circumstances of the case permit, and no decision, order or other action of a judge shall be quashed or set aside because of informality. 1994, c.27, s.6. Private hearings 23.7 Any family law proceeding may be heard in private at the discretion of the judge. 1994, c.27, s.6. Restraining order 23.8 On application, a judge may: (a) make an order restraining a person from molesting, annoying, harassing, communicating with or otherwise interfering with the applicant or a child in the lawful care or custody of the applicant; and (b) require the respondent to enter into any recognizance, with or without sureties, or post any bond that the judge considers appropriate. 1994, c.27, s.6. Appeal 23.9(1) Where an appeal is taken against any decision, order, judgment or other determination of the Family Law Division, the appellant shall appeal the decision, order, judgment or other determination to the Court of Appeal notwithstanding any provision of the Act pursuant to which the appeal is being taken.

19 19 QUEEN S BENCH c. Q-1 (2) Where an order is made by the Provincial Court of Saskatchewan in a proceeding that is subsequently transferred to the Family Law Division: (a) any appeal from that order is to be taken to the Family Law Division; and (b) the right to appeal, and any procedure relating to the appeal, continue to exist as they existed on the day before the proceeding was transferred. 1994, c.27, s.6. [see Editorial Appendix] JUDICIAL SEPARATION 24 Repealed , c.f-6.1, s.31. Grounds for judgment of judicial separation 25(1) A judgment of judicial separation may be obtained from the court either by a husband or by a wife, if his wife or her husband, as the case may be, has since the celebration of marriage been guilty of: (a) (b) (c) (d) adultery; or cruelty; or desertion without reasonable cause, for two years or upwards; or sodomy or bestiality, or an attempt to commit either of these offences. (2) Repealed , c.f-6.1, s.31. (3) In subsection (1) cruelty means conduct creating a danger to life, limb or health, or any course of conduct that in the opinion of the court is grossly insulting and intolerable or is of such character that the person seeking judicial separation could not reasonably by expected to be willing to live with the other after he or she has been guilty of the same. R.S.S. 1978, c.q-1, s.25; , c.f-6.1, s.31. Jurisdiction of court to hear actions for judicial separation, etc. 26 The court shall have jurisdiction to hear an action for judicial separation when both the parties thereto: (a) are domiciled in Saskatchewan at the time of the commencement of the action; or (b) had a matrimonial home in Saskatchewan when their cohabitation ceased or when the events occurred on which the claim for separation is based; or (c) are resident in Saskatchewan at the time of the commencement of the action. R.S.S. 1978, c.q-1, s.26; , c.f-6.1, s.31.

20 20 c. Q-1 QUEEN S BENCH Where judgment of judicial separation shall not be granted 27 No judgment of judicial separation shall be granted when it is made to appear to the court that the plaintiff has: (a) in any case where judicial separation is sought on the ground of adultery, been accessory to or connived at the adultery of the other party; or (b) condoned the matrimonial offence complained of; or (c) presented or prosecuted the claim in collusion with the respondent; or (d) during the existence of the marriage committed adultery which has not been condoned. R.S.S. 1978, c.q-1, s.27. Conduct conducing to adultery 28 A judgment of judicial separation may be refused when the claim has been presented on the grounds of adultery, and it is made to appear to the court that the plaintiff has been guilty of conduct conducing to the adultery. R.S.S. 1978, c.q-1, s.28; , c.16, s Repealed , c.f-6.1, s Repealed , c.f-6.1, s Repealed , c.38, s Repealed , c.f-6.1, s Repealed , c.f-6.1, s.31. Disposition of property of marriage settlement by court 34 Where a decree absolute for dissolution of marriage or a decree of nullity of marriage has been or is obtained, the court may make such order as it deems proper with regard to the application, either for the benefit of the children of the marriage or of the parties to the marriage or both, of property comprised in any ante-nuptial or post-nuptial settlement made on the parties to the marriage. R.S.S. 1978, c.q-1, s.34. Settlement of property of spouse upon judgment being granted 35 Where a spouse obtains a judgment of judicial separation or a decree nisi for dissolution of marriage the court may order such settlement as it deems proper of any property to which the other spouse may be entitled in possession or reversion for the benefit of the innocent party and of the children of the marriage, or either or any of them. R.S.S. 1978, c.q-1, s.35; , c.38, s Repealed , c.f-6.1, s Repealed , c.f-6.1, s.31.

21 21 QUEEN S BENCH c. Q-1 Injunction re disposal of property 38 The court may, after action brought, issue an order restraining the defendant in any action upon the covenant for payment contained in a separation agreement from disposing of or incumbering his property, whether real or personal, pending the final disposition of such action save subject to any interest that the defendant s spouse may subsequently acquire in the property under any judgment of the court. R.S.S. 1978, c.q-1, s.38; , c.38, s.32; , c.f-6.1, s Repealed , c.77, s Repealed , c.77, s Repealed , c.47, s.4. Power to allow intervention on terms 41 In every case in which a person is charged with adultery with any party to a suit or in which the court may consider, in the interest of any person not already a party to the suit, that that person should be made a party to the suit, the court may, if it thinks fit, allow that person to intervene upon such terms, if any, as the court thinks just. R.S.S. 1978, c.q-1, s.41. Actions restraining obscene publications 42(1) An action may be brought in the Court of Queen s Bench by or on behalf of the Attorney General for an injunction or mandamus restraining the publication of any newspaper, publication, pamphlet, magazine, periodical or other printed matter whatsoever that publishes, continuously or repeatedly, writings or articles that are obscene, immoral, or otherwise injurious to public morals. (2) Such action may be brought against anyone printing publishing or distributing any publication of the kind mentioned in subsection (1). (3) In any such action the judge may, on such material as he sees fit, grant an interlocutory injunction or mandamus. R.S.S. 1978, c.q-1, s.42. SITTINGS EN BANC When court sits en banc 43(1) The court shall sit en banc for the purpose of hearing any applications and disposing of any matters that may properly come or be brought before it, at any time when called together by the chief justice, or, in case of his absence from the province or illness, by the senior puisne justice of said court.

22 22 c. Q-1 QUEEN S BENCH (2) The court for the purpose of sitting en banc shall be constituted by three or more of the judges thereof: Provided that any two judges of the court sitting en banc may enlarge the hearing of any matter before the court. (3) The sittings of the court en banc shall be held at the city of Regina or at the city of Saskatoon. R.S.S. 1978, c.q-1, s.43. RULES OF LAW Rules 44 In every civil cause or matter commenced in the court law and equity shall be administered according to the following rules: Equitable estate, right or relief claimed by plaintiff 1 If a plaintiff or petitioner claims to be entitled to any equitable estate or right or to relief upon any equitable ground against a deed, instrument or contract, or against any right, title or claim whatsoever asserted by a defendant or respondent in such cause or matter, or to relief founded upon a legal right, the court and every judge thereof shall give to the plaintiff or petitioner such relief as might have been given by the High Court of justice in England on the first day of January, 1898, in a suit or proceeding for the same or a like purpose; Equitable estate, right or relief claimed by defendant 2 If a defendant claims to be entitled to any equitable estate or right, or to relief upon any equitable ground against a deed, instrument or contract or against any right, title or claim asserted by a plaintiff or petitioner in such cause or matter, or alleges any ground of equitable defence to a claim of the plaintiff or petitioner in such cause or matter, the court and every judge thereof shall give to every equitable estate, right or ground of relief so claimed, and to every equitable defence so alleged, such and the same effect by way of defence against the claim of the plaintiff or petitioner as the High Court of Justice in England might have given on the first day of January, 1898, if the same or like matters had been relied on by way of defence in any suit or proceeding instituted in that court for the same or a like purpose;

23 23 QUEEN S BENCH c. Q-1 Counterclaim and third parties 3 The court and every judge thereof shall also have power to grant to a defendant in respect of any equitable estate or right or other matter of equity, and also in respect of any legal estate, right or title claimed or asserted by him, all such relief against a plaintiff or petitioner as such defendant shall have properly claimed by his pleading, and as the court or any judge thereof might have granted in a suit instituted for that purpose by the same defendant against the same plaintiff or petitioner; and also all such relief, relating to or connected with the original subject of the cause or matter and in like manner claimed against any other person, whether already a party to the same cause or matter or not, who shall have been duly served with notice in writing of such claim pursuant to any rule of court or order of the court, as might properly have been granted against such person if he had been made a defendant to a cause duly instituted by the same defendant for the like purpose; and every person served with any such notice shall thenceforth be deemed a party to the cause or matter with the same rights in respect of his defence against such claim as if he had been duly sued in the ordinary way by the defendant; Equitable rights appearing incidentally 4 The court and every judge thereof shall recognize and take notice of all equitable estates, titles and rights and all equitable duties and liabilities appearing incidentally in the course of a cause or matter in the same manner as the High Court of Justice in England on the first day January, 1898, would have recognized and taken notice of the same in any suit or proceeding duly instituted therein; Relief against penalties, forfeitures 5 Subject to appeal as in other cases, the court shall have power to relieve against penalties and forfeitures, and in granting such relief to impose such terms as to costs, expenses, damages, compensation and all other matters as the court sees fit; No cause or proceeding restrained by prohibition or injunction 6 No cause or proceeding at any time pending in the court shall be restrained by prohibition or injunction; but every matter of equity on which an injunction against the prosecution of any such cause or proceeding might have been obtained in England prior to the passing of The Supreme Court of Judicature Act 1873, either unconditionally or on any terms or conditions, may be relied on by way of defence thereto: Provided that nothing in this Act contained shall disable the court from directing a stay of proceedings in any cause or matter pending before it if it shall see fit; and any person, whether a party or not to any such cause or matter, who would have been entitled in England, prior to the passing of The Supreme Court of Judicature Act 1873, to apply to the court to restrain the prosecution thereof, or who may be entitled to enforce by attachment or otherwise any judgment, decree, rule or order contrary to which all or any part of the proceedings in such cause or matter may have been taken, shall be at liberty to apply to the court by motion in a summary way for a stay of proceedings, either generally or so far as may be necessary for the purpose of justice; and the court shall thereupon make such order as shall be just;