Stoddard v. Randall, (1985) 72 N.S.R.(2d) 99 (FC)

• Case Date: December 09, 1985
• Jurisdiction: Nova Scotia
• Citations: (1985), 72 N.S.R.(2d) 99 (FC)

Stoddard v. Randall (1985), 72 N.S.R.(2d) 99 (FC);

              173 A.P.R. 99

MLB headnote and full text

Stoddard v. Randall

(84FLB-34)

Indexed As: Stoddard v. Randall

Nova Scotia Family Court

Niedermayer, F.C.J.

December 9, 1985.

Summary:

A mother applied for maintenance for her daughter from the putative father. There were difficulties in serving the respondent father, but he was eventually served with a subpoena respecting the hearing of the application. At the time and place for trial, neither the putative father nor anyone on his behalf appeared. An order resulted requiring him to pay maintenance. Arrears accumulated under the maintenance order. The mother applied to enforce the arrears. Again there was difficulty in serving the father. Eventually a warrant was issued to compel his appearance. The father attended court and moved to set aside the original maintenance order. The father alleged that the order was made in violation of his right to life, liberty and security of the person in s. 7 of the Canadian Charter of Rights and Freedoms.

The Nova Scotia Family Court dismissed the father's motion.

Administrative Law - Topic 265

Hearing and decision - Right to a hearing - Persons entitled to a hearing - The Nova Scotia Family Court held that before a father can be incarcerated for wilful failure or refusal to pay a maintenance order, he has the right to be heard and to have notice of the date, time and place of the hearing into the consequences of his default - See paragraph 13.

Civil Rights - Topic 1506

Property - Charter - Application of - The Nova Scotia Family Court held that the Canadian Charter of Rights and Freedoms (s. 7) does not protect property rights - See paragraph 12.

Civil Rights - Topic 8546

Canadian Charter of Rights and Freedoms - Interpretation - Life, liberty and security of the person - The Nova Scotia Family Court held that s. 7 of the Charter (right to life, liberty and security of the person) does not protect property rights - See paragraph 12.

Civil Rights - Topic 8547

Canadian Charter of Rights and Freedoms - Interpretation - Principles of fundamental justice - The Nova Scotia Family Court stated that "the principles of fundamental justice mean nothing more and nothing less than justice and fairness." - See paragraph 13.

Family Law - Topic 2523

Maintenance of wives and children - Enforcement - Orders - Arrears of maintenance - Right to be heard - The Nova Scotia Family Court held that before a father can be incarcerated for wilful failure or refusal to pay a maintenance order, he has the right to be heard and to have notice of the date, time and place of the hearing into the consequences of his default - If the father receives notice and fails to attend or participate at such hearing, he cannot complain that his s. 7 Charter rights (life, liberty and security of the person) have been violated if imprisonment is the result - See paragraph 13.

Practice - Topic 6254

Judgments and orders - Setting aside orders - Ex parte orders - A maintenance order was made against an unwed father in his absence - The father failed to attend court despite being personally served - The mother subsequently applied to enforce the accumulated arrears - The father sought to set aside the order because it was made in violation of his right to life, liberty and security of the person (s. 7 Charter) - The Nova Scotia Family Court held that there was no violation of s. 7 because only property rights were involved at this stage - The order was properly made in his absence, which he failed to satisfactorily explain - See paragraphs 11 to 18.

Cases Noticed:

Joplin v. Chief Constable of the City of Vancouver et al. (1983), 144 D.L. R.(3d) 285 (B.C.C.A.), refd to. [para. 13].

Danch, Re (1985), 69 N.S.R.(2d) 78; 171 A.P.R. 78 (T.D.), refd to. [para. 13].

Hebb & Assoc. v. C. & B. Enterprises (1977), 23 N.S.R.(2d) 369; 32 A.P.R. 369 (C.A.), refd to. [para. 16].

Hepburn v. Fairway Life & Marine Ins. Ltd. (1983), 57 N.S.R.(2d) 228; 120 A.P.R. 228 (T.D.), refd to. [para. 16].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [paras. 2, 12-13, 18].

Rules of Court (N.S.), Civil Procedure Rules, rule 7.01(4)(b) [para. 7]; rule 12.01(2)(b) [para. 8]; rule 12.01(4), rule 12.01(5) [para. 14].

Family Maintenance Act, S.N.S. 1980, c. 6, sect. 39(1)(b) [para. 13].

Authors and Works Noticed:

Black's Law Dictionary (5th Ed.) [para. 12].

Counsel:

Rhian I. Calcott, for the applicant;

Clyde Nickerson, for the respondent.

This motion was heard before Niedermayer, F.C.J., of the Nova Scotia Family Court at Lunenburg, N.S. The decision of Niedermayer, F.C.J., was delivered on December 9, 1985.