E. Burden of Proof; Failure to Attend

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 454-455

Page 454

The burden of proving inability to pay support or to comply with any other order falls on the party against whom the order was made. The reverse onus whereby the defaulter must prove inability to pay or otherwise face imprisonment is compatible with principles of fun-

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damental justice and does not violate sections 7 or 11 of the Canadian Charter of Rights and Freedoms.¹⁹A respondent who has actual notice of a show cause hearing and who fails to attend cannot complain that his rights under section 7 of the Canadian Charter of Rights and Freedoms have been violated, notwithstanding that Rule 7.01 of the Rules and Regulations enacted pursuant to the Family Court Act,²⁰as amended, has not been duly complied with. Such non-compliance is treated as an irregularity and does not nullify the proceeding where there is no breach of the rules of natural justice.²¹

[19] Woloshyn v. Woloshyn, [2000] M.J. No. 53 (Q.B.); Mancuso v. Mancuso (1991), 35 R.F.L. (3d) 265 (Ont. Prov. Div.); Fedorychka v. Fedorychka (1985), 44 R.F.L. (2d) 458 (Sask. U.F.C.).

[20] R.S.N.S. 1967, c. 98.

[21] Lecreux v. Lecreux, [1987] N.S.J. No. 293 (Co. Ct.), citing Stoddard v. Randall (1985), 72 N.S.R. (2d) 99 (Fam. Ct.).