Armoyan v. Armoyan, 2015 NSSC 241

• Judge: Forgeron, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: June 04, 2015
• Jurisdiction: Nova Scotia
• Citations: 2015 NSSC 241;(2015), 364 N.S.R.(2d) 275 (SC)

Armoyan v. Armoyan (2015), 364 N.S.R.(2d) 275 (SC);

    1146 A.P.R. 275

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. AU.035

Vrege Sami Armoyan (petitioner) v. Lisa Armoyan (respondent)

(Hfx. No. 1201-065036; 73536; 2015 NSSC 241)

Indexed As: Armoyan v. Armoyan

Nova Scotia Supreme Court

Family Division

Forgeron, J.

August 27, 2015.

Summary:

Former spouses were engaged in acrimonious matrimonial property division litigation. The husband had removed millions of dollars of assets from Nova Scotia to Lebanon. Due to perceived disclosure deficiencies in the husband's statement of property, the wife applied for financial disclosure from certain non-parties: eight companies in which the husband had an interest or that allegedly held relevant information; two law firms and an accounting firm that represented some of the companies and the husband; and the husband's brother. At issue was: (1) whether rule 59.27 applied; (2) whether the non-parties could challenge the relevancy of the information; (3) what consideration should be given to the husband's statement of property; (4) the applicable test for non-party disclosure; (5) whether assets sold after separation were relevant to the proceeding; (6) whether the wife's motion should be dismissed for abuse of process; and (7) what disclosure orders, if any, should be granted.

The Nova Scotia Supreme Court, Family Division, determined which documents held by non-parties were relevant and had to be produced, subject to any claim of privilege.

Family Law - Topic 947

Husband and wife - Marital property - Distribution orders - Practice - Financial disclosure (incl. assets and their value) - [See first Practice - Topic 4601 ].

Practice - Topic 4601

Discovery - Production of documents by nonparties - General (incl. procedure) - During matrimonial property division litigation between divorced spouses, the wife applied for production of financial information from various non-parties - Rule 59.27 provided for the authority of a "court officer" to order production from non-parties - The Nova Scotia Supreme Court, Family Division, held that rule 59.27 did not apply, as it distinguished between a "court officer" and the "court" - The court's jurisdiction to order non-party disclosure was governed by rule 14.12 - See paragraphs 13 to 20.

Practice - Topic 4601

Discovery - Production of documents by nonparties - General (incl. procedure) - During matrimonial property division litigation between divorced spouses, the wife applied for production of financial information from various non-parties - The wife argued that the non-parties could argue privilege and confidentiality, but not relevance - The Rules of Court neither allowed nor prevented a non-party from challenging relevance - The Nova Scotia Supreme Court, Family Division, stated that "I am not prepared to exclude the issue of relevance from the non-party production motions. Although relevance is traditionally advanced by parties, where non-parties are requested to produce private documents, it appears procedurally appropriate that they be entitled to present as strong a case as they can muster in opposition to the motion, including the ability to challenge relevance. Had it been otherwise intended, then such a restriction should have been inserted in the Rules. I am not willing to infer such a restriction." - See paragraphs 22 to 28.

Practice - Topic 4601

Discovery - Production of documents by nonparties - General (incl. procedure) - During matrimonial property division litigation between divorced spouses, the wife applied for production of financial information from various non-parties on the ground that the husband's statement of property was deficient - At issue was the use that could be made of the statement of property - The Nova Scotia Supreme Court, Family Division, held that "the statement of property, inclusive of the two volumes of supporting documents, can be referenced in their entirety, and without restrictions, for the purpose of framing the relevance discussion" - See paragraphs 30 to 33.

Practice - Topic 4603

Discovery - Production of documents by nonparties - Jurisdiction - Rule 14.12 gave a judge a discretionary authority to order a third party to produce relevant documents or electronic information to a party or the court - Evidence was relevant where it had a tendency to prove or disprove a fact in issue - During matrimonial property division litigation between divorced spouses, the wife applied for production of financial information from various non-parties: eight companies in which the husband had an interest or that allegedly held relevant information; two law firms and an accounting firm that represented some of the companies and the husband; and the husband's brother - The Nova Scotia Supreme Court, Family Division, referred to a number of factors to be considered in deciding whether to order non-party production - Where a non-party was aligned in interest with a party opposing production, a production order was more likely than where the non-party was a true "stranger" to the litigation - Non-party production was to be used as a last resort - Full disclosure was of significant importance in family law proceedings - The court stated that "The balance of privacy interests against the importance of disclosure of relevant information involves a proportional, contextual analysis, rooted in the law and the evidence." - The court examined the documents sought from each non-party for relevance - All relevant documents, except those for which privilege was claimed, were ordered to be produced by the non-parties - Those documents for which relevance was not established need not be produced - The court stated that the wife "established that the benefit of production, given the probative value of the disclosure, outweighs any harm or inconvenience to the privacy interests of the non-parties in the circumstances of this case, based on a proportional and contextual analysis." - See paragraphs 35 to 142.

Practice - Topic 4604

Discovery - Production of documents by nonparties - When ordered - [See Practice - Topic 4603 ].

Cases Noticed:

Rothesay Residents Association Inc. v. Rothesay Heritage Preservation & Review Board et al. (2006), 299 N.B.R.(2d) 369; 778 A.P.R. 369; 2006 NBCA 61, refd to. [para. 12].

Hilltop Group Ltd. et al. v. Katana et al., [2001] O.T.C. Uned. B05 (Sup. Ct.), refd to. [para. 12].

R. v. Curragh Inc. et al. (1997), 209 N.R. 252; 159 N.S.R.(2d) 1; 468 A.P.R. 1 (S.C.C.), refd to. [para. 12].

Brown v. Capital District Health Authority et al. (2006), 249 N.S.R.(2d) 240; 792 A.P.R. 240; 2006 NSSC 348, refd to. [para. 26].

Rogers v. Wallascheck et al., [2001] O.T.C. 759 (Sup. Ct.), refd to. [para. 27].

Petrelli v. Lindell Beach Holiday Resort Ltd. (2011), 310 B.C.A.C. 196; 526 W.A.C. 196; 2011 BCCA 367, refd to. [para. 32].

Barthe v. National Bank Financial Ltd. (2015), 359 N.S.R.(2d) 258; 1133 A.P.R. 258; 2015 NSCA 47, refd to. [para. 32].

R. v. Grant (M.E.) (2015), 468 N.R. 83; 315 Man.R.(2d) 259; 630 W.A.C. 259; 2015 SCC 9, refd to. [para. 37].

Laushway v. Messervey et al. (2014), 340 N.S.R.(2d) 163; 1077 A.P.R. 163; 2014 NSCA 7, refd to. [para. 38].

Brown v. Cape Breton (Regional Municipality) (2011), 302 N.S.R.(2d) 84; 955 A.P.R. 84; 2011 NSCA 32, refd to. [para. 38].

Saturley v. CIBC World Markets Inc. (2011), 297 N.S.R.(2d) 371; 943 A.P.R. 371; 2011 NSSC 4, refd to. [para. 38].

Ontario (Attorney General) v. Ballard Estate - see Ontario (Attorney General) et al. v. Stavro et al.

Ontario (Attorney General) et al. v. Stavro et al. (1995), 86 O.A.C. 43 (C.A.), refd to. [para. 41].

Leskun v. Leskun (2006), 349 N.R. 158; 226 B.C.A.C. 1; 373 W.A.C. 1; 2006 SCC 25, refd to. [para. 42].

Armoyan v. Armoyan (2013), 334 N.S.R.(2d) 204; 1059 A.P.R. 204; 2013 NSCA 99, refd to. [para. 43].

Clarke v. Clarke, [1990] 2 S.C.R. 795; 113 N.R. 321; 101 N.S.R.(2d) 1; 275 A.P.R. 1, refd to. [para. 51].

Reardon v. Smith (1999), 180 N.S.R.(2d) 339; 557 A.P.R. 339; 1999 NSCA 147, refd to. [para. 51].

Homsi v. Zaya (2009), 248 O.A.C. 168; 2009 ONCA 322, refd to. [para. 56].

FCMI Financial Corp. et al. v. Curtis International Ltd. et al., [2003] O.T.C. 1020 (Sup. Ct.), refd to. [para. 122, footnote 37].

Tersigni v. Circosta et al. (1997), 29 O.T.C. 141 (Gen. Div.), refd to. [para. 122, footnote 37].

National Bank Financial Ltd. v. Potter et al. (2005), 233 N.S.R.(2d) 123; 739 A.P.R. 123; 2005 NSSC 113, refd to. [para. 129].

Nova Scotia (Attorney General) v. Royal & Sun Alliance Insurance Co. of Canada et al. (2000), 189 N.S.R.(2d) 290; 590 A.P.R. 290 (S.C.), refd to. [para. 138].

Hartford Accident and Indemnity Co. et al. v. Maritime Life Assurance Co. (1996), 160 N.S.R.(2d) 161; 473 A.P.R. 161 (T.D.), affd. (1997), 161 N.S.R.(2d) 78; 477 A.P.R. 78 (C.A.), refd to. [para. 138, footnote 40].

R. v. Murtha (R.) (2009), 286 N.S.R.(2d) 122; 909 A.P.R. 122; 2009 NSSC 342, refd to. [para. 138, footnote 40].

Statutes Noticed:

Civil Procedure Rules (N.S.), rule 14.01 [para. 36]; rule 14.12 [para. 35]; rule 22.11(6) [para. 40].

Rules of Civil Procedure (N.S.) - see Civil Procedure Rules (N.S.).

Rules of Court (N.S.) - see Civil Procedure Rules (N.S.).

Authors and Works Noticed:

Lederman, Sidney N., Bryant, Alan W., and Fuerst, Michelle K., The Law of Evidence in Canada (4th Ed. 2014), para. 2.45 [para. 37, footnote 2].

Stevenson, William A., and Côté, Jean E., Alberta Civil Procedure Handbook (2003), vol. 2, p. 27-74 [para. 41, footnote 3].

Counsel:

Vrege Armoyan, self-represented petitioner, not present;

Harold Niman, Leigh Davis and Amber Penney, for the respondent, Lisa Armoyan;

George MacDonald, Q.C., and Michael Blades, for the non-parties, Geovex Investments Ltd., APL Properties Ltd., Armco Capital Inc., Clarke Inc., Geosam Investments Ltd., George Armoyan, Scotia Learning Centres Inc., Southwest Properties Ltd. and 1181830 Alberta Ltd.;

Jocelyn Campbell, Q.C., for the non-party, Deloitte Touche LLP;

Sheree Conlon, for the non-party, Stewart McKelvey;

Geoffrey Saunders, for the non-party, Merrick Holm.

This motion was heard on May 8 and June 4, 2015, at Halifax, N.S., before Forgeron, J., of the Nova Scotia Supreme Court, Family Division, who delivered the following judgment on August 27, 2015.