Armoyan v. Armoyan, 2011 NSSC 242

• Judge: Campbell, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: May 31, 2011
• Jurisdiction: Nova Scotia
• Citations: 2011 NSSC 242;(2011), 334 N.S.R.(2d) 197 (SC)

Armoyan v. Armoyan (2011), 334 N.S.R.(2d) 197 (SC);

    1059 A.P.R. 197

MLB headnote and full text

Temp. Cite: [2013] N.S.R.(2d) TBEd. SE.052

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

(1201-65036; 2011 NSSC 242)

Indexed As: Armoyan v. Armoyan

Nova Scotia Supreme Court

Campbell, J.

June 17, 2011.

Summary:

The husband petitioned for a divorce and corollary relief in Nova Scotia 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. Before deciding whether or not to take jurisdiction, the Nova Scotia court had to decide whether certain information surreptitiously taken by the wife from the husband's company computer was inadmissible and protected by solicitor-client privilege. The Florida court had already decided that the information was admissible, because solicitor-client privilege had either been waived or an exception to privilege applied. At issue was whether the admissibility of the information was res judicata as a result of the Florida court's decision.

The Nova Scotia Supreme Court held that res judicata did not apply.

Editor's Note: It was subsequently determined by the Nova Scotia Court of Appeal in 334 N.S.R.(2d) 204; 1059 A.P.R. 204, that Florida was the forum conveniens for all matters except the division of matrimonial property. The division of matrimonial property was to be determined in Nova Scotia on an application under the Matrimonial Property Act.

Estoppel - Topic 377

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - When applicable - The husband petitioned for a divorce and corollary relief in Nova Scotia after the wife petitioned for divorce in Florida - 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 - Before deciding whether or not to take jurisdiction, the Nova Scotia court had to decide whether certain information surreptitiously taken by the wife from the husband's company computer was inadmissible and protected by solicitor-client privilege - The Florida court had decided that the information was admissible, because solicitor-client privilege had either been waived or an exception to privilege applied - That decision was currently awaiting a decision on appeal in Florida - At issue was whether the admissibility of the information was res judicata as a result of the Florida court's decision - The Nova Scotia Supreme Court held that res judicata did not apply - Assuming that the prerequisites for res judicata were established, the court retained a limited discretion to refuse to apply the doctrine of res judicata - The court disagreed with the Florida court that solicitor-client privilege was waived - The court queried why, if the wife was permitted access to the computer, she clandestinely removed it from the home and hired an information technology person to "clone" the computer so that there were no traces that the information had been copied - The court also disagreed with the Florida court that the husband's inappropriate or fraudulent behaviour in hiding assets created an exception to solicitor-client privilege - The court noted that the husband had attempted to call evidence to disprove fraud, but the Florida court refused to hear it.

Estoppel - Topic 398

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Exceptions - Special circumstances - [See Estoppel - Topic 377 ].

Estoppel - Topic 400

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Foreign judgment in same cause of action or matter - [See Estoppel - Topic 377 ].

Cases Noticed:

Danyluk v. Ainsworth Technologies Inc. et al. (2001), 272 N.R. 1; 149 O.A.C. 1; 2001 SCC 44, refd to. [para. 18].

Ashby v. McDougall Estate et al. (2005), 234 N.S.R.(2d) 162; 745 A.P.R. 162; 2005 NSSC 148, refd to. [para. 18].

Naken et al. v. General Motors of Canada Ltd., [1983] 1 S.C.R. 72; 46 N.R. 139, refd to. [para. 21].

Authors and Works Noticed:

Lange, Donald, The Doctrine of Res Judicata in Canada (3rd Ed. 2010), generally [para. 24].

Counsel:

Gordon Kelly, for the petitioner;

Mary Jane McGinty, for the respondent.

This matter was heard on May 31, 2011, at Halifax, N.S., before Campbell, J., of the Nova Scotia Supreme Court, who delivered the following judgment on June 17, 2011.