Richards v. Richards et al., (2013) 335 N.S.R.(2d) 203 (SC)

• Judge: Muise, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: February 01, 2013
• Jurisdiction: Nova Scotia
• Citations: (2013), 335 N.S.R.(2d) 203 (SC);2013 NSSC 269

Richards v. Richards (2013), 335 N.S.R.(2d) 203 (SC);

    1060 A.P.R. 203

MLB headnote and full text

Temp. Cite: [2013] N.S.R.(2d) TBEd. OC.067

Sandra Lynn Richards (applicant) v. Robert James Richards, Jaylynn Enterprises Limited, Holm Realty Limited, Duane Robert Richards, Jay Robert Richards and Richards Family Trust (2002) (respondents)

(Hfx. No. 390959; 2013 NSSC 269)

Indexed As: Richards v. Richards et al.

Nova Scotia Supreme Court

Muise, J.

August 28, 2013.

Summary:

The spouses married in 1976 and separated in 2010. They had incorporated two companies (1976 and 1989), from which they drew no employment income. However, the parties received dividends from one company and funds from a family trust that received the dividends from the other company. The husband controlled the flow of all the money. After separation, the husband made offers to resolve spousal maintenance and marital property issues. When the wife refused those offers, the husband decided that neither of them would get any funds from the companies and the family trust. The wife sought interim spousal maintenance under the Divorce Act.

The Nova Scotia Supreme Court, in a judgment not reported in this series of reports, dismissed the motion. The wife appealed.

The Nova Scotia Court of Appeal, in a judgment reported (2012), 312 N.S.R.(2d) 282; 987 A.P.R. 282, allowed the appeal. The court imputed income of $157,000 per year to the husband and ordered him to pay spousal support of $72,000 per year or $6,000 per month. Steps were taken to exclude the wife from the operation of the companies. The wife applied under the Companies Act for oppression remedies, including injunctive relief. Pending that hearing, the wife applied for an interim injunction to prohibit her husband and others from contravening a special resolution respecting her consent required for any company transactions exceeding $50,000. She also sought interim production of, and access to, the corporate and financial records of the two companies. Although the companies had produced much of the requested information, the wife sought more detailed and extensive production and more complete access to information.

The Nova Scotia Supreme Court, in a judgment reported (2013), 331 N.S.R.(2d) 202; 1051 A.P.R. 202, allowed the motion in part. The court declined to grant an interim injunction, but did order more detailed production of, and access to, the corporate and financial records. Now at issue was costs.

The Nova Scotia Supreme Court awarded the husband and four other respondents in the motion a total of $58,000 in costs, plus disbursements, payable forthwith.

Practice - Topic 7109

Costs - Party and party costs - Special orders - Discretion to exceed scale of costs - [See Practice - Topic 7109.1 ].

Practice - Topic 7109.1

Costs - Party and party costs - Special orders - Increased costs (based on solicitor and client or special costs) - In divorce and marital property litigation, the wife applied under the Companies Act for oppression remedies, including injunctive relief - Pending that hearing, the wife applied for an interim injunction to prohibit her husband and others from contravening a special resolution respecting her consent required for any company transactions exceeding $50,000 - She also sought interim production of, and access to, the corporate and financial records of the two companies - Although the companies had produced much of the requested information, the wife sought more detailed and extensive production and more complete access to information - The trial judge allowed the motion in part - An interim injunction was denied, but more detailed production of, and access to, the corporate and financial records was ordered - The Nova Scotia Supreme Court awarded the husband $34,000 in costs (lump sum above that payable under Tariff C to reflect the special circumstances and provide substantial indemnity towards actual legal expenses) - The remaining four respondents were awarded a total of $24,000 in costs, plus disbursements - All costs were payable forthwith - The court agreed that, absent exceptional circumstances, costs on an unsuccessful interlocutory injunction motion should be payable forthwith, as it was a discrete legal remedy involving substantial costs.

Practice - Topic 7117

Costs - Party and party costs - Special orders - Lump sum in lieu of taxed costs - [See Practice - Topic 7109.1 ].

Practice - Topic 7368

Costs - Costs of interlocutory proceedings - Interim or interlocutory injunctions - [See Practice - Topic 7109.1 ].

Practice - Topic 7372

Costs - Costs of interlocutory proceedings - Payment forthwith - [See Practice - Topic 7109.1 ].

Cases Noticed:

Armour Group Ltd. v. Halifax (Regional Municipality) (2008), 267 N.S.R.(2d) 350; 853 A.P.R. 350; 2008 NSSC 123, refd to. [para. 6].

Gammell v. Sobeys Group Inc. (2011), 306 N.S.R.(2d) 61; 968 A.P.R. 61; 2011 NSSC 190, refd to. [para. 7].

Bevis et al. v. CTV Inc. et al. (2004), 228 N.S.R.(2d) 34; 723 A.P.R. 34; 2004 NSSC 209, refd to. [para. 8].

Campbell v. Jones (2001), 197 N.S.R.(2d) 212; 616 A.P.R. 212 (S.C.), refd to. [para. 8].

Landymore et al. v. Hardy et al. (1992), 112 N.S.R.(2d) 410; 307 A.P.R. 410 (S.C.), refd to. [para. 9].

Williamson v. Williams et al. (1998), 223 N.S.R.(2d) 78; 705 A.P.R. 78 (C.A.), refd to. [para. 10].

National Bank Financial Ltd. v. Potter et al. (2008), 267 N.S.R.(2d) 339; 853 A.P.R. 339; 2008 NSSC 213, refd to. [para. 12].

Cana International Distributing Inc. v. Standard Innovation Corp., [2011] O.T.C. Uned. 752; 2010 ONSC 752, refd to. [para. 18].

National Bank Financial Ltd. v. Potter et al. (2010), 294 N.S.R.(2d) 1; 933 A.P.R. 1; 2010 NSSC 220, refd to. [para. 25].

Turner-Lienaux v. Nova Scotia (Attorney General) et al. (1992), 115 N.S.R.(2d) 200; 314 A.P.R. 200 (T.D.), refd to. [para. 26].

Counsel:

Rubin Dexter, for Sarah Richards;

William Ryan, Q.C., for Robert Richards;

Joseph Burke, for Jaylynn Enterprises Ltd. and Holm Realty Ltd.;

Duane Richards, self-represented at hearing (his counsel Lesley Mercer and David Byers not in attendance);

Colin Bryson, for Jay Richards.

This matter was heard on December 3-5, 2012, and January 31, and February 1, 2013, at Halifax, N.S., before Muise, J., of the Nova Scotia Supreme Court, who delivered the following judgment on August 28, 2013.