Kent v. Kent, 2010 NLCA 53

• Judge: Green, C.J.N.L., Cameron and White, JJ.A.
• Court: Court of Appeal (Newfoundland)
• Case Date: September 14, 2010
• Jurisdiction: Newfoundland and Labrador
• Citations: 2010 NLCA 53;(2010), 301 Nfld. & P.E.I.R. 152 (NLCA)

Kent v. Kent (2010), 301 Nfld. & P.E.I.R. 152 (NLCA);

    932 A.P.R. 152

MLB headnote and full text

Temp. Cite: [2010] Nfld. & P.E.I.R. TBEd. SE.023

Catherine Kent (applicant) v. Clarence Kent (respondent)

(10/25; 2010 NLCA 53)

Indexed As: Kent v. Kent

Newfoundland and Labrador Supreme Court

Court of Appeal

Green, C.J.N.L., Cameron and White, JJ.A.

September 14, 2010.

Summary:

The wife sought a divorce against her husband, custody of their three children, division of matrimonial property, a share of the husband's business assets, and child and spousal support. With respect to child support, the wife sought an amount in excess of the basic table amount, and an amount for special expenses. She did not claim on the basis of undue hardship. While the trial was ongoing, the wife's counsel issued a subpoena duces tecum to the husband's common law partner (Carroll), requesting her to appear in court and to bring with her certain financial information. Carroll objected to the production of the requested material. The trial judge ruled that the wife file a separate application requesting the information be filed.

The Newfoundland and Labrador Unified Family Court, in a decision reported at (2010), 295 Nfld. & P.E.I.R. 351; 911 A.P.R. 351; 2010 NLUFC 5, ordered that all financial documentation sought in the interlocutory application was to be provided, concurrent with Carroll's attendance in court pursuant to the issued subpoena. Carroll appealed. The wife submitted that the judge's order was interlocutory and as such leave to appeal was required.

The Newfoundland and Labrador Court of Appeal held that the order was a final order vis-à-vis Carroll, and appealable as of right. The court allowed the appeal, set aside the decision of the trial judge, and remitted the matter to the trial judge for determination.

Evidence - Topic 4485

Witnesses - Attendance and oath - Attendance - Subpoena duces tecum - Setting aside - Procedure - [See first Evidence - Topic 4487 ].

Evidence - Topic 4486

Witnesses - Attendance and oath - Attendance - Subpoena duces tecum - Setting aside - Grounds (incl. burden of persuasion) - [See second Evidence - Topic 4487 ].

Evidence - Topic 4486

Witnesses - Attendance and oath - Attendance - Subpoena duces tecum - Setting aside - Grounds (incl. burden of persuasion) - The Newfoundland and Labrador Court of Appeal summarized the approach and applicable principles with respect to applications to quash a subpoena in a civil proceeding - See paragraph 78.

Evidence - Topic 4487

Witnesses - Attendance and oath - Attendance - Subpoena duces tecum - Against nonparty - The challenge to the production of personal financial documents in this family law proceeding arose as a result of the issuance of a subpoena duces tecum by the wife (Kent) to a non-party (Carroll) - Carroll attended at the trial with counsel pursuant to the subpoena and placed her objection on the record - Her counsel, however suggested that Kent ought to make a formal application setting out her position as to why the documents should be produced - The trial judge acceded to that suggestion - The Newfoundland and Labrador Court of Appeal concluded that the trial judge erred in principle by: (i) requiring Kent to make an application justifying admissibility; (ii) applying principles that defined the scope of discovery of documents; and (iii) in particular, applying a relational test for production instead of the test for admissibility at trial - As a result, the trial judge's decision could not stand - See paragraphs 42 to 54.

Evidence - Topic 4487

Witnesses - Attendance and oath - Attendance - Subpoena duces tecum - Against nonparty - A witness was subpoenaed to produce personal financial documents during a family law proceeding - The Newfoundland and Labrador Court of Appeal considered the proper test to be applied to determine whether the subpoena should be set aside - The court concluded that "a non-party may seek to quash a subpoena on the ground that the information sought is not relevant to the live issues in dispute. Additionally, even if the material sought can be said to be relevant in this sense, there may be ... other grounds on which a person subpoenaed may be able to quash the subpoena or at least postpone its execution ... [M]ost other grounds are a manifestation of the jurisdiction of the court to control an abuse of its process. This involves taking into consideration the interests of the subpoenaed witness as well as the interests of the litigants ... This is essentially a balancing exercise, involving the application of the proportionality principle" - See paragraphs 56 to 74.

Evidence - Topic 4487

Witnesses - Attendance and oath - Attendance - Subpoena duces tecum - Against nonparty - A witness was subpoenaed to produce personal financial documents during a divorce trial - The question arose as to who had the onus of establishing that a subpoena should be quashed - The case law was not uniform - The Newfoundland and Labrador Court of Appeal agreed with and followed the approach taken in Canada Metal Co. v. Heap (1975) (Ont. C.A.): "the issuer must show the connection between the evidence sought and the issues in the case. It is then up to the person challenging the subpoena to show that it was nevertheless improperly issued" - See paragraphs 75 to 77.

Family Law - Topic 970

Husband and wife - Actions between husband and wife - Practice - Financial disclosure - In the context of a dispute over child and spousal support, the wife sought financial documentation from the husband's common law partner (Carroll) - An issue was the relevance of Carroll's income and financial resources - The Newfoundland and Labrador Court of Appeal stated that the case law supported the legal proposition "that the income of a second spouse or partner is not considered to be the income of the payor. Rather, it is a question of determining the economic impact of the presence of that person on the payor's ability to pay" - See paragraphs 95 to 99.

Family Law - Topic 970

Husband and wife - Actions between husband and wife - Practice - Financial disclosure - In the context of a dispute over child and spousal support, the wife sought financial documentation from the husband's common law partner (Carroll) - The decision of the trial judge indicated that he accepted the wife's submission that the financial information must be made available to the court - The Newfoundland and Labrador Court of Appeal stated that was an error in law - Under the wife's analysis, no consideration was given to the privacy interests of the non-party who had no obligation to the spouse or children of the payor - "In the absence of an absolute legal requirement that a third party provide financial information, the party seeking access to such information must demonstrate that the interference with the privacy of the third party is necessary in the particular circumstances and the extent to which it is necessary" - See paragraph 101.

Family Law - Topic 970

Husband and wife - Actions between husband and wife - Practice - Financial disclosure - The Newfoundland and Labrador Court of Appeal examined the position of the trial judge that it was axiomatic that a new spouse or partner of a payor spouse must provide his or her financial information to a court considering an application for spousal support or s. 7 special expenses for a child - The court concluded that the trial judge erred - "[O]ne cannot say that just because the quantum of spousal support or section 7 expenses is in play it necessarily follows that the specific income level and other financial information of a new partner of the payor spouse is automatically relevant and can be required to be produced by subpoena directed to that non-party partner. The analysis must be more nuanced than that. The Court must consider how and to what extent any of that information may be necessary to resolve the specific support issues ... Because of the potential impact on the partner's privacy interests, if that information should be provided, the timing becomes a relevant consideration, as well as whether the information could be obtained in a less intrusive way from another source" - In the end result, the court remitted the matter to the trial judge for determination - See paragraphs 112 to 117.

Family Law - Topic 3510

Divorce - Jurisdiction - General - Third party rights - The challenge to the production of personal financial documents in this divorce trial arose as a result of the issuance of a subpoena duces tecum to the husband's common law partner (Carroll) - Carroll relied on the fact that she had entered into a cohabitation agreement with the husband that kept their financial affairs separate - She submitted that the existence of the agreement reinforced her claim to privacy - The Newfoundland and Labrador Court of Appeal stated that the mere existence of the agreement could not shield Carroll from providing the requested information where there were strong competing interests at stake in the litigation - While the husband and Carroll were entitled to create a regime of privacy between them, such an arrangement could not prevail over the litigation rights of the wife and children - That conclusion did not depend on whether the agreement was "specific and unambiguous" - See paragraphs 79 to 84.

Family Law - Topic 3510

Divorce - Jurisdiction - General - Third party rights - A witness was subpoenaed to produce personal financial documents during a divorce trial - The Newfoundland and Labrador Court of Appeal stated that issues of privacy had relevance in at least two respects - "First, they require careful consideration of whether the live issues in the dispute require the degree of disclosure requested ... [T]he existence of a legitimate claim to protection of a privacy interest requires the court to allow production of no more information than is reasonably necessary ... Secondly, the need to protect privacy as much as possible without compromising the litigation requires the court to consider such matters as the timing and necessity of execution of the subpoena" - See paragraph 85.

Family Law - Topic 4162

Divorce - Practice - Appeals - From interim orders - [See both Family Law -Topic 4164 ].

Family Law - Topic 4164

Divorce - Practice - Appeals - Leave to appeal - In the context of a dispute over child and spousal support, a non-party (Carroll) sought to appeal the order made against her and in favour of the applicant (Ms. Kent), requiring her to disclose financial information - Kent submitted that the judge's ruling was interlocutory in nature and as such leave to appeal was required under rule 57.02(1)(a) - The Newfoundland and Labrador Court of Appeal stated that "The difficulty with Ms. Kent's position is that her argument depends on treating the order in question as interlocutory when viewed through the lens of the parties only ... It is the effect of the order which is sought to be appealed on the party appealing that must be considered" - The order was a final order vis-à-vis Carroll; it resolved all issues outstanding between Carroll and Ms. Kent - Once the documents were disclosed, Carroll could never regain her privacy - The policy against trial interruption was applied primarily in the context of applications involving parties to the proceeding - See paragraphs 22 to 37.

Family Law - Topic 4164

Divorce - Practice - Appeals - Leave to appeal - In an "interim decision", the trial judge ordered a non-party (Carroll) to provide all financial documentation sought in the wife's interlocutory application, concurrent with Carroll's attendance in court pursuant to an issued subpoena - The Newfoundland and Labrador Court of Appeal concluded that the order was final and appealable as of right - If the court had concluded that the order was interlocutory, leave ought to be given in any event - Paragraphs (b) through (e) of rule 57.02(4) applied - Rule 57.02(6) also provided that the court might summarily grant leave at any time - "The issues raised ... have not been dealt with by this Court before and, in our view, are of sufficient importance to justify examination by this Court now" - Further, any appeal by Carroll at the end of the trial would have no practical effect - In all the circumstances, the interests of justice would require leave to be granted - See paragraphs 38 to 40.

Family Law - Topic 4252.1

Divorce - Evidence and proof - Maintenance - Inquiry respecting non-party's finances - [See all Family Law - Topic 970 ].

Practice - Topic 4604

Discovery - Production of documents by nonparties - When ordered - [See first Evidence - Topic 4487 ].

Practice - Topic 8985

Appeals - When appeal available - From interlocutory ruling - [See both Family Law - Topic 4164 ].

Cases Noticed:

Carter v. Municipal Construction Ltd. et al. (2001), 204 Nfld. & P.E.I.R. 112; 614 A.P.R. 112 (N.L.T.D.), affd. (2001), 206 Nfld. & P.E.I.R. 181; 618 A.P.R. 181; 2001 NFCA 58, consd. [para. 14].

Earles v. Earles, [2006] B.C.T.C. 221; 2006 BCSC 221, refd to. [para. 17].

Watmore v. Watmore, [2003] N.B.R.(2d) Uned. 62; 2003 NBQB 139 (Fam. Div.), refd to. [para. 17].

Raftus v. Raftus (1998), 166 N.S.R.(2d) 179; 498 A.P.R. 179; 37 R.F.L.(4th) 59; 159 D.L.R.(4th) 264 (C.A.), refd to. [para. 17].

Hersey v. Hersey (1993), 135 N.B.R.(2d) 67; 344 A.P.R. 67; 47 R.F.L.(3d) 117 (C.A.), consd. [paras. 19, 96].

Crase v. Crase (2003), 263 N.B.R.(2d) 361; 689 A.P.R. 361; 2003 NBQB 240 (Fam. Div.), refd to. [para. 19].

Schmidt v. Schmidt (1999), 132 B.C.A.C. 36; 215 W.A.C. 36; 1 R.F.L.(5th) 197 (C.A.), refd to. [para. 19].

Cox v. Cox, [2007] A.R. Uned. 15; 2007 ABCA 37, refd to. [para. 19].

United Food and Commercial Workers, Local 1252 Fishermen's Union v. Cashin et al. (1994), 124 Nfld. & P.E.I.R. 201; 384 A.P.R. 201 (Nfld. C.A.), consd. [para. 23].

Curtis v. Smith's Home Centre Ltd. (2009), 286 Nfld. & P.E.I.R. 113; 883 A.P.R. 113; 2009 NLCA 14, refd to. [para. 24].

SNC-Lavalin Inc. v. Newfoundland and Labrador Hydro-Electric Corp. et al. (1998), 162 Nfld. & P.E.I.R. 172; 500 A.P.R. 172 (Nfld. C.A.), consd. [para. 25].

C.O. v. O.N.C., [2006] Nfld. & P.E.I.R. Uned. 17; 2006 NLCA 18, refd to. [para. 26].

Barnes v. Barnes (2010), 295 Nfld. & P.E.I.R. 213; 911 A.P.R. 213; 2010 NLCA 17, refd to. [para. 26].

Smerchanski v. Lewis (1980), 117 D.L.R.(3d) 716 (Ont. C.A.), consd. [paras. 31, 35].

Fabrikant v. Swamy, 2008 QCCA 923, consd. [para. 32].

CanWest Media Works Inc. v. Canada (Attorney General) (2007), 227 O.A.C. 116; 2007 ONCA 567, refd to. [para. 36].

Miller (Ed) Sales and Rentals Ltd. v. Caterpillar Tractor Co. et al. (1990), 112 A.R. 197; 78 Alta. L.R.(2d) 207 (Q.B.), refd to. [para. 44].

Dalgleish v. Basu (1974), 51 D.L.R.(3d) 309 (Sask. Q.B.), refd to. [para. 45].

General Hospital Corp. v. Newfoundland Association of Public Employees (1986), 63 Nfld. & P.E.I.R. 332; 194 A.P.R. 332 (Nfld. T.D.), consd. [paras. 48, 60].

Steele v. Savory (1891), 8 T.L.R. 94, refd to. [para. 48].

Consortium Developments (Clearwater) Ltd. v. Sarnia (City) et al., [1998] 3 S.C.R. 3; 230 N.R. 343; 114 O.A.C. 92, refd to. [para. 48].

Senior et al. v. Holdsworth, [1975] 2 All E.R. 1009 (C.A.), appld. [para. 49].

Leahy v. White, 1987 CarswellNfld 325, refd to. [para. 63].

R. v. Mercer (D.A.) et al. (2003), 222 Nfld. & P.E.I.R. 239; 663 A.P.R. 239 (N.L.T.D.), refd to. [para. 64].

Canada Metal Co. v. Heap (1975), 54 D.L.R.(3d) 641 (Ont. C.A.), appld. [para. 68].

Davenport v. Dobreff, 2008 ONCA 721, refd to. [para. 71].

Bowater Mersey Paper Co. v. Nova Scotia (Minister of Finance) (1991), 106 N.S.R.(2d) 416; 288 A.P.R. 416 (T.D.), refd to. [para. 71].

Family and Children's Services of Kings County v. M.S. and J.S. (2002), 208 N.S.R.(2d) 107; 652 A.P.R. 107 (Fam. Ct.), refd to. [para. 71].

Szeto et al. v. Field - see Szeto v. Dwyer et al.

Szeto v. Dwyer et al. (2010), 297 Nfld. & P.E.I.R. 311; 918 A.P.R. 311; 2010 NLCA 36, refd to. [para. 74].

Laboratoires Servier et al. v. Apotex Inc. et al., [2008] F.T.R. Uned. 242; 2008 FC 321, refd to. [para. 77].

Dunphy v. Peel Living et al., [2009] O.T.C. Uned. A20 (Sup. Ct.), refd to. [para. 77].

Seagrove Capital Corp. et al. v. Leader Mining International Inc. et al. (2000), 193 Sask.R. 273; 2000 SKQB 230, refd to. [para. 77].

Juman v. Doucette - see Doucette v. Wee Watch Day Care Systems Inc. et al.

Doucette v. Wee Watch Day Care Systems Inc. et al., [2008] 1 S.C.R. 157; 372 N.R. 95; 252 B.C.A.C. 1; 422 W.A.C. 1; 2008 SCC 8, refd to. [para. 80].

R. v. Daye, [1908] 2 K.B. 333 (D.C.), refd to. [para. 81].

Davignon v. Davignon (2000), 129 O.A.C. 322; 5 R.F.L.(5th) 37 (C.A.), refd to. [para. 93].

Meiklejohn v. Meiklejohn (2001), 150 O.A.C. 149; 19 R.F.L.(5th) 167 (C.A.), refd to. [para. 93].

Laughren v. Laughren (1996), 147 Sask.R. 236 (Q.B. Fam. Div.), refd to. [para. 100].

G.J.M. v. A.E.M., [1997] Sask.R. Uned. 49 (Q.B.), refd to. [para. 100].

S.A.M. v. P.D.M. (1996), 186 A.R. 386 (Q.B.), refd to. [para. 100].

Wright v. Wright (1996), 141 Sask.R. 44; 114 W.A.C. 44 (C.A.), refd to. [para. 102].

Marchand v. Boon (2004), 243 Sask.R. 296; 2004 SKQB 21 (Fam. Div.), refd to. [para. 103].

Buhr v. Buhr (1997), 124 Man.R.(2d) 89 (Q.B. Master), refd to. [para. 103].

Omah-Maharajh v. Howard (1998), 215 A.R. 159; 58 Alta. L.R.(3d) 236 (Q.B.), refd to. [para. 106].

Jaasma v. Jaasma (1999), 249 A.R. 357; 3 R.F.L.(5th) 74 (Q.B.), refd to. [para. 106].

Blaine v. Sanders (2000), 144 Man.R.(2d) 300 (Q.B.), refd to. [para. 106].

Cholodniuk v. Sears (2001), 204 Sask.R. 268; 14 R.F.L.(5th) 9 (Q.B.), refd to. [para. 106].

Church v. Hagen, [1995] B.C.T.C. Uned. 35; 10 R.F.L.(4th) 457 (S.C.), consd. [para. 107].

Bates v. Welcher (2001), 153 Man.R.(2d) 281; 238 W.A.C. 281; 2001 MBCA 33, consd. [para. 110].

Statutes Noticed:

Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, sect. 15.2(4) [para. 89].

Divorce Act Regulations (Can.), Federal Child Support Guidelines, SOR/97-175, sect. 7(1) [para. 88].

Federal Child Support Guidelines - see Divorce Act Regulations (Can.).

Rules of Court (Nfld.), Supreme Court Rules, 1986, rule 32.07(1) [para. 13]; rule 46.23(1) [para. 56]; rule 57.02(4) [para. 38]; rule 57.02(6) [para. 39].

Supreme Court Rules (Nfld.) - see Rules of Court (Nfld.), Supreme Court Rules.

Counsel:

Catherine Perry, for the intended appellant;

Jean Dawe, Q.C., for the first respondent;

Keri-Lynn Power, for the second respondent.

This appeal was heard on May 11-12, 2010, by Green, C.J.N.L., Cameron and White, J.J.A., of the Newfoundland and Labrador Court of Appeal. In reasons for judgment written by Green, C.J.N.L., and Cameron, J.A., the Court of Appeal rendered the following judgment on September 14, 2010.