Armoyan v. Armoyan, 2015 NSSC 92

• Judge: Forgeron, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: February 26, 2015
• Jurisdiction: Nova Scotia
• Citations: 2015 NSSC 92;(2015), 357 N.S.R.(2d) 333 (SC)

Armoyan v. Armoyan (2015), 357 N.S.R.(2d) 333 (SC);

    1127 A.P.R. 333

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. AP.012

Lisa Armoyan (applicant) v. Vrege Armoyan (respondent)

(1201-065036; 070342; 73536; 2015 NSSC 92)

Indexed As: Armoyan v. Armoyan

Nova Scotia Supreme Court

Family Division

Forgeron, J.

April 1, 2015.

Summary:

The husband petitioned for a divorce and corollary relief after the wife petitioned for divorce in Florida, where she and the children resided. At issue, apart from the divorce itself, was spousal and child support, the division of matrimonial property, a lis pendens respecting title to the former matrimonial home in Nova Scotia, the validity of a marriage contract, and custody and access. The wife moved to stay the Nova Scotia proceedings, arguing that Florida was the forum conveniens for all matters (except the lis pendens).

The Nova Scotia Supreme Court, Family Division, in a judgment reported (2012), 321 N.S.R.(2d) 61; 1018 A.P.R. 61, ruled (with reasons to be delivered later) that Nova Scotia had jurisdiction simpliciter and was the forum conveniens for all issues except custody and access (the husband abandoned his custody and access claim). In a judgment reported (2012), 321 N.S.R.(2d) 64; 1018 A.P.R. 64, the court provided reasons for its decision. Prior to that decision, the court had adjourned the Nova Scotia proceeding, subject to the condition that the wife be restrained from advancing the Florida divorce proceeding pending the court's ruling on forum conveniens. The wife appealed the adjournment condition and the forum conveniens ruling. The appeals were consolidated. Each spouse sought to admit fresh evidence.

The Nova Scotia Court of Appeal, in a judgment reported (2013), 334 N.S.R.(2d) 204; 1059 A.P.R. 204, admitted the fresh evidence. The court allowed the wife's appeal respecting the adjournment condition respecting the Florida proceeding. The condition was excised. The court allowed the wife's forum conveniens appeal in part. Florida was the forum conveniens for all matters except the division of matrimonial property. That matter was to be determined in Nova Scotia on an application under the Matrimonial Property Act. The court awarded the wife costs on the adjournment appeal, and costs on appeal and at trial on the forum non conveniens appeal. The court reserved quantifying costs pending submissions by the parties.

The Nova Scotia Court of Appeal, in a judgment reported (2013), 337 N.S.R.(2d) 365; 1067 A.P.R. 365, held that it was appropriate to award lump sum costs rather than tariff costs. The court awarded a lump sum of $306,000, all inclusive. The wife took out an execution order against the husband and obtained, from the Registrar of the Court of Appeal, a discovery subpoena in aid of execution requiring the husband to attend to answer questions under oath regarding his assets and circumstances. The wife, unable to serve the husband with the subpoena, moved for an order for substituted service.

The Nova Scotia Court of Appeal, per Farrar, J.A., in a judgment reported (2013), 340 N.S.R.(2d) 339; 1077 A.P.R. 339, dismissed the motion. When a certified costs order was issued in the Court of Appeal, it was treated as a costs order of the Supreme Court. If there were subsequent proceedings respecting that order, including execution, those proceedings were to be in the Supreme Court, not the Court of Appeal. Accordingly, the wife should have sought substituted service in the Supreme Court. The court noted that because of rule 79.25(1) (delivery of subpoena in aid of execution to the witness "personally") there was an issue as to whether substituted service was even available. That issue had to be resolved in the Supreme Court, if substituted service was sought. Upcoming matters included (1) the wife's application to register her foreign support order for enforcement under the Interjurisdictional Support Orders Act (husband filed an application to set registration aside) and (2) the Matrimonial Property Act application, in which the husband applied to enforce the provisions of a marriage contract and the wife applied to set it aside. The wife moved for security for costs and suit costs.

The Nova Scotia Supreme Court, Family Division, in a judgment reported (2014), 344 N.S.R.(2d) 275; 1089 A.P.R. 275, allowed the motions. The husband was ordered to provide security for costs in the amount of $500,000 and suit costs of $25,000.

The Nova Scotia Supreme Court, Family Division, awarded the wife $375,000 as suit costs.

Family Law - Topic 4178

Divorce - Practice - Costs - Suit money or interim costs - The Nova Scotia Supreme Court, Family Division, set out the three preconditions to a party being awarded suit costs: "The party seeking the order must be impecunious to the extent that, without such an order, that party would be deprived of the opportunity to proceed with the case. The claimant must establish a prima facie case of sufficient merit to warrant pursuit. There must be special circumstances sufficient to satisfy the court that the case is within the narrow class of cases where the extraordinary exercise of its power is appropriate" - See paragraph 10.

Family Law - Topic 4178

Divorce - Practice - Costs - Suit money or interim costs - Divorced spouses were locked in contentious family law proceedings involving the wife's application under the Interjurisdictional Support Orders Act wherein she applied to register a Florida support order for enforcement and the husband's application under the Matrimonial Property Act to enforce the provisions of their marriage contract - The wife sought to set aside the marriage contract - In May 2014, the husband was ordered to provide security for costs in the amount of $500,000 and suit costs of $25,000 - The husband had not paid two prior costs orders and a third remained to be quantified - The court rejected the husband's claim that he had insufficient financial resources to pay the prior costs orders or any security for costs or suit money that might be ordered - His income tax returns showed income exceeding $1,000,000 per year and he failed to provide evidence to support his allegation that he had been unable to work since the separation - The husband did not prove a "lack of means" - At separation the husband had assets of approximately $40,000,000, most of which he moved out of the country - The remaining assets in Nova Scotia were encumbered in an attempt to make himself insolvent in this jurisdiction - There was also no evidence of an inability to raise the money to post security or pay suit costs - Further, requiring the wife to continue the litigation without security would be unfair given her limited financial means - Suit costs were appropriate where the wife was impecunious and she established a prima facie case of merit in the two proceedings - In February 2015, the wife sought $400,000 in suit costs to retain experts to speak on foreign law, forensic accounting and business valuations - The Nova Scotia Supreme Court, Family Division, awarded $375,000 in suit costs - The wife remained impecunious, established a prima facie case of merit and the husband had the ability to pay - The forensic accounting and business valuations were necessary (husband provided no valuations, which he was obligated to do) and, absent suit costs, the wife lacked the financial resources to have them done.

Cases Noticed:

British Columbia (Minister of Forests) v. Okanagan Indian Band et al., [2003] 3 S.C.R. 371; 313 N.R. 84; 189 B.C.A.C. 161; 309 W.A.C. 161; 2003 SCC 71, refd to. [para. 10].

Homsi v. Zaya (2009), 248 O.A.C. 168; 2009 ONCA 322, refd to. [para. 12].

MacGillivary v. Ross (2008), 271 N.S.R.(2d) 37; 867 A.P.R. 37; 2008 NSSC 339 (Fam. Div.), refd to. [para. 16].

Counsel:

Harold Niman and Leigh Davis, for the applicant;

Gordon Kelly and Stacey O'Neill, for the respondent.

This application was heard on February 26, 2015, at Halifax, N.S., before Forgeron, J., of the Nova Scotia Supreme Court, Family Division, who delivered the following judgment on April 1, 2015.