James Dean

The applicant brought a pre-trial Charter application seeking a stay of proceedings or exclusion of breath sample evidence, alleging breaches of her ss. 7, 8, 9, and 10(a) and (b) Charter rights following a motor vehicle collision.

The court found that the arresting officer had reasonable and probable grounds to arrest the applicant for impaired driving, based on her admission of alcohol consumption, the smell of alcohol, and her attempt to flee the scene after making a suicidal statement.

The court also found no breach of the applicant's right to counsel, as a 9-minute delay was justified by safety concerns.

The application was dismissed.

The moving party (respondent in the family proceeding) brought a motion to reopen a final order made in default, arguing that his severe illness prevented him from participating in the litigation and instructing counsel over a three-year period.

The court found that the moving party had engaged in a history of delay and obstructive behaviour, including actively resisting the sale of family property, which contradicted his claims of incapacity.

The court held that disagreement with findings of fact does not constitute a 'mistake' under Family Law Rule 25(19) and dismissed the motion, awarding costs to the responding party.

On competing motions to vary an indefinite spousal support order, the court held the payor failed to establish a material change in circumstances warranting termination, where the recipient's disabling health conditions existed at the time of the original order and continued to preclude meaningful employment.

The court rejected the submission that the recipient had a duty to become self-sufficient and found the original order did not impose such an expectation.

The recipient, however, established a material change based on the termination of child support, inflation, and the payor's substantial income increase from approximately $79,000 to over $136,000.

Applying the Divorce Act variation framework and consulting the Spousal Support Advisory Guidelines, the court increased support by $600 per month to $2,100, retroactive to September 1, 2013.