Christopher Eberhard VonMaltzahn Applicant v. Karen Elizabeth Koppernaes Respondent Judge: The Honourable Justice Beryl A. MacDonald, 2018 NSSC 192

Supreme Court of Nova Scotia (FAMILY DIVISION) Citation : VonMaltzahn v. Koppernaes , 2018 NSSC 192 Date : 20180817 Docket: 1201-067236 Registry: Halifax Between: Christopher Eberhard VonMaltzahn Applicant v. Karen Elizabeth Koppernaes Respondent Judge: The Honourable Justice Beryl A. MacDonald Heard: April 25, 2018 and June 7, 2018 Counsel: Christopher VonMaltzahn with counsel, Kim Johnson Karen Koppernaes with counsel, Matthew Conrad By the Court: [ 1 ] On November 16, 2017, Ms. Koppernaes entered Mr. VonMaltzahn’s residence at Green Bay without his permission. She came in through a window.

On a wall in the residence there was a picture of Mr. VonMaltzahn and his partner. She took a picture of that picture. She took other pictures of the contents of the residence. She arranged to have the locks changed and then invited her brother and a friend of his to help her remove furniture, paintings, bedding, a scrabble board, carvings, a washing machine, a canoe, slides and photo prints, a tent belonging to Mr. VonMaltzahn’s partner and numerous other items. On November 20 th she gave the new key to the property to her counsel who informed counsel for Mr.

VonMaltzahn about her entry into the property. [ 2 ] On November 20, upon being informed about this unauthorized entry, Mr. VonMaltzahn immediately went to the property. He had no time to complete a list of what had been removed because he was flying to England that evening. He did arrange for the locks to be changed and requested his counsel to inform Ms. Koppernaes he would seek full compensation for the cost of changing the locks, legal fees associated and compensation for anything missing or damaged. On November 29 th he completed an inventory of missing items.

On December 14 he demanded an immediate return of all items taken. They were not returned. [ 3 ] On January 5, 2018 Mr. VonMaltzahn filed a Notice of Motion for a Contempt Order pursuant to Civil Procedure Rule 89, an Enforcement Order pursuant to Civil Procedure Rule 80, (permitting him to attend at any premises owned by Ms. Koppernaes to retrieve the items wrongfully taken), compensation for any items not returned or retrieved, general and punitive damages for breach of privacy, trespass, conversion and costs on a solicitor/client basis.

[ 4 ] On February 12, 2018 both parties appeared before me for a conference. Both were represented by counsel. I was informed the Contempt proceeding was withdrawn but all other requests in the Notice of Motion remained. The parties were given a hearing date for April 25, 2018. I instructed counsel for Mr. Von Maltzahn to provide, on or before March 5, 2018, a supplemental affidavit providing valuations for the property that was taken and affidavits from any other witnesses he intended to give testimony. On or before March 26, 2018 counsel for Ms.

Koppernaes was to file her affidavits in response to those filed by Mr. VonMaltzahn. No objection to the form of the Motion nor to these filing deadlines was made by counsel at the time. [ 5 ] On March 6, 2018, counsel for Mr. VonMaltzahn filed his additional materials and a brief. [ 6 ] On March 20, 2018 counsel for Ms. Koppernaes wrote a letter addressed to my attention. Ms. Koppernaes had elected to represent herself with respect to the Motion although he would remain counsel of record in respect to the “balance of the existing divorce proceeding”.

Once the division of property and debt are concluded the only remaining issue in respect to this divorce is spousal support. Presumably that lawyer is retained to file material and make submissions in respect to that claim. Late Filing and Adjournment Requests [ 7 ] On March 22, 2018 Ms. Koppernaes filed a letter requesting a date extension to file her affidavits and other material. She was “attempting to find counsel”.

I was not satisfied the reasons given in that letter would justify the request, but I was prepared to accept a late filed affidavit and deal with the implications once it had been filed and I heard further from Mr. VonMaltzahn’s counsel. I was on vacation when the letter was received by the court and read it upon my return on April 3. On that same date Ms. Koppernaes filed a letter dated March 29 indicating she had retained counsel.

She requested permission to have representation to present a “comprehensive response to the petitioner’s request to enter my home and property as well as the matter before the court”. [ 8 ] It did not appear this letter was copied to Ms. Johnson. I directed a copy was to be sent to her. Ms. Johnson forwarded that letter to the lawyer named by Ms. Koppernaes. On April 5, 2018 the court received a letter from that lawyer indicating she had not been retained and if she was retained she would immediately file a Notice of New Counsel. No such notice was filed by that counsel. [ 9 ] On April 13, 2018 Ms.

Koppernaes filed her affidavit. She, in a letter dated April 20 th , requested an adjournment so she could find “legal representation”. On that same date counsel for Mr. VonMaltzahn filed a reply affidavit to the affidavit filed by Ms. Koppernaes. Counsel asked that it be considered if the court did not strike Ms. Koppernaes’ affidavit because it was not filed on time. I was not prepared to ignore Ms. Koppernaes’ affidavit and did accept it as her evidence on the Motion. [ 10 ] Counsel for Mr. VonMaltzahn also objected to an adjournment of the hearing.

Whether a court should grant an adjournment is a matter requiring the exercise of judicial discretion. The Ontario Court of Appeal in Law Society of Upper Canada v. Igbinosun 2009 ONCA 484 wrote: A non-exhaustive list of procedural and substantive considerations in deciding whether to grant or refuse an adjournment can be derived from these cases.

Factors which may support the denial of an adjournment may include a lack of compliance with prior court orders, previous adjournments that have been granted to the applicant, previous peremptory hearing dates, the desirability of having the matter decided and a finding that the applicant is seeking to manipulate the system by orchestrating delay.

Factors which may favour the granting of an adjournment include the fact that the consequences of the hearing are serious, that the applicant would be prejudiced if the request were not granted, and a finding that the applicant was honestly seeking to exercise his [or her] right to counsel, and had been represented in the proceedings up until the time of the adjournment request. In weighing these factors, the timeliness of the request, the applicant's reasons for being unable to proceed on the scheduled date and the length of the requested adjournment should also be considered. [ 11 ] Ms.

Koppernaes had three competent lawyers acting for her during the course of this proceeding commenced August 2013. She was now seeking a fourth. Whether this was a delay tactic or an effort to find a lawyer who would agree with her view of the evidence I do not know, but the delay caused by an adjournment would be considerable and it would be prejudicial to Mr. VonMaltzahn who had been waiting since December 14, 2017 to have his possessions returned. [ 12 ] Previously Ms. Koppernaes had reluctantly complied with the requirement in the Interim Order to deliver items listed in

Schedule “B” to Mr. VonMaltzahn. Numerous letters had to be exchanged between counsel to accomplish this result. She had not co- operated, as was expected, to permit necessary re-financing of real property to occur in an expeditious manner. This has delayed the division of property and debt. [ 13 ] I did not grant an adjournment. Jurisdiction of the Supreme Court Family Division [ 14 ] On April 24, 2018 I was informed Matt Conrad would represent Ms. Koppernaes at the Motion hearing. At the hearing he objected to the court’s jurisdiction to decide the contested issues.

He argued the Judicature Act, R.S.N.S. 1989, c. 240 did not provide the Family Division with jurisdiction to hear tort claims. He also made a procedural objection arguing the matter must be heard by way of Originating Application or Action. He requested the court dismiss the Motion. [ 15 ] The Judicature Act , R.S.N.S. 1989, c. 240, s. 32A (1) (

o) does give this court jurisdiction to deal with “interspousal and familial torts”. I do not consider that wording to be limited to adjudications involving assaults. It applies to any tort committed between spouses including trespass on a spouse’s property, conversion of that spouse’s property and invasion of that spouse’s privacy.

[ 16 ] The Judicature Act , R.S.N.S. 1989, c. 240, s. 32A (1) (

d) gives this court jurisdiction to determine “rights to property in disputes among spouses”. [ 17 ] This court also has jurisdiction to enforce its orders. Requiring a spouse to return property wrongfully taken from a spouse or requiring compensation for property that is not returned are remedies within this court’s jurisdiction pursuant to the Civil Procedure Rules. Practice and Procedure [ 18 ] This Motion was filed in the context of an ongoing Divorce proceeding. It was not a procedural error to proceed by way of Motion and, if it was, it is not fatal, requiring the Motion be dismissed.

The Interim Order to be enforced gave direction about how the parties’ property and debt is to be divided. Much remains to be done pursuant to that order before the divorce can be finalized. The lawyer who represented Ms. Koppernaes, when the motion was set down for a hearing, made no objection to the procedure to be followed. The application of Civil Procedure Rule 2 may be used to excuse a requirement, (if there is one) for this matter to have been set down as either an Originating Application or Action. [ 19 ] Counsel for Ms.

Koppernaes argued to proceed by Motion would be prejudicial to his client because she would be unable to require disclosure, discovery and interrogatories among other procedural steps provided by the Nova Scotia Civil Procedure Rules. [ 20 ] These steps can be requested prior to a Motion hearing. They are not exclusive to Originating Applications and Actions. In this case the suggested procedural steps were unnecessary because Ms. Koppernaes admitted she entered Mr.VonMaltzahn’s property at Green Bay and removed objects from that property.

The primary focus of the hearing was to identify the objects that were removed, to determine which of those were to be returned with a valuation provided if those objects were not returned. The secondary focus of the hearing was whether the court should grant remedies for trespass, conversion, and invasion of privacy all of which were grounded in Ms. Koppernaes admission she entered property occupied and owned by Mr. VonMaltzahn and removed objects from that property. The motion did provide her with an opportunity to convince the court she had a “right” to enter and remove and retain what she had taken.

This required legal argument that would not be enhanced by proceeding either by way of Original application or Action. [ 21 ] Everything that has happened between these parties occurred within the context of an existing and ongoing Divorce proceeding. Further delay in resolving the reason why this Motion was filed would be very prejudicial to Mr. VonMaltzahn who had been waiting, since Ms. Koppernaes removed possessions from his property, to have them returned and be informed whether he will be compensated for any losses and for the tortious acts committed by Ms. Koppernaes.

Delay was to her advantage. [ 22 ] I did not dismiss the Motion. Background [ 23 ] Mr. VonMaltzahn and Ms. Koppernaes separated in October 2012. Since then they have been mired in an epic battle to determine how their property and debt is to be divided. In the fall of 2015, counsel for Mr. VonMaltzahn and Ms. Koppernaes believed they had reached a comprehensive settlement. Unfortunately Ms. Koppernaes did not agree with that assessment. [ 24 ] The parties did agree to participate in a binding settlement conference. It was scheduled before me on November 6, 2015.

On that date, after beginning the conference, I became concerned Ms. Koppernaes did not understand the binding settlement process or the document that was the foundation of the alleged settlement agreement. I terminated the conference. [ 25 ] Mr. VonMaltzahn filed a Notice of Motion for a declaration that a comprehensive and binding agreement had been reached. If the Motion was to be heard Mr.VonMaltzahn and Ms. Koppernaes would need to engage new counsel. Ms. Koppernaes did engage new counsel. That counsel informed me his client did wish to conclude the matter at a binding settlement conference.

That conference was held over two days in May 2016. [ 26 ] On June 23, 2016 I provided the parties with a written decision I expected would resolve all outstanding issues. The Order incorporating my decision was issued October 5, 2016. It was called an Interim Order. Because it divided property, it was, in fact, a final order in respect to the division of property and debt between the parties. The word interim was likely used because it was issued in a divorce proceeding that has not been finalized.

There appears to be a practice to call all orders made prior to the conclusion of a Divorce proceeding “interim”, but this word does not and cannot suggest the terms of the order may be changed at the final hearing. [ 27 ] At the binding settlement conference, I was provided a document called “General Principles to be Applied to Settlement”. I was informed it would govern the division of property and debt between the parties except for those items that required resolution at the binding settlement conference. Each party was to have exclusive possession and ownership of a residence. Ms.

Koppernaes would have the “Beech Street” property and Mr. VonMaltzahn the “Green Bay Road” property. Each would have sole ownership and possession of the contents of each residence except for items on exchanged lists requiring each to deliver certain paintings, furniture, canoes, kayaks etc. to the other. Mr. VonMaltzahn had agreed with the list provided by Ms. Koppernaes except for items appearing on his list. At the binding settlement conference Ms. Koppernaes objected to the list of items to be given to and retained by Mr. VonMaltzahn.

In my decision dated July 23, 2016, I said: This should have been resolved by the parties. Once again I find Ms. Koppernaes intransigence to be the root cause of their inability to settle this issue. Given what the parties had by way of personal possessions Mr. VonMaltzahn’s requests, described in

Schedule “A” attached to his September 14, 2015 affidavit were reasonable and should not have been denied. Some of these items may be difficult for others to identify if an enforcement proceeding is required. I must leave that problem to Mr. VonMaltzahn. Ms. Koppernaes shall transfer and make arrangements to complete the transfer to Mr. VonMaltzahn of all of the items he requested as described in

Schedule “A”.

[28] On July 26, 2016 Ms. Koppernaes’ counsel sent to Mr. VonMaltzahn’s counsel a new list of items she wanted from “GreenBay”. None of the requested items had been on her previous list, to which Mr. VonMaltzahn had agreed. She had not requested thoseitems at the binding settlement conference. They were items that were to remain in his possession because they were not on a list andthus were part of the contents of “Green Bay” that were to be in his possession and ownership. For obvious reasons he refused herrequest. [29] The Interim Order placed the “Beech Street” property and all of the contents of “Beech Street as of May 6, 2016, except foritems listed in

Schedule “B”, in the possession and sole ownership of Ms. Koppernaes. It placed the “Green Bay Road” property and allof the property listed in

Schedule “B” and “all of the household contents at “Green Bay, except the kayak belonging to Ms. Koppernaes,in the sole possession and ownership of Mr. VonMaltzahn. At the Motion hearing Ms. Koppernaes argued that “household contents”does not have the same meaning as “contents” as a justification for her entering the Green Bay property in November to remove what shewanted to possess. I rejected that argument. Ms. Koppernaes knew she had no entitlement to the items she took and admitted this oncross-examination. She testified that “she regrets her actions; they were “impulsive and vindictive”.

She was truly sorry for the pain anddiscomfort she caused. She said she would return what she had taken but did not admit she had taken all the items on Mr. VonMaltzahn’slist. I have been asked to decide if she did take everything on the list he has provided to the court and to value items she has not returned. [30] Credibility is always an issue in these proceedings.

I have considered Justice Warner's decision in Novak Estate, Re, 2008NSSC 283 and in particular his comment that credibility assessment requires "The ability to assess whether the witness' testimony isplausible or, as stated by the British Columbia Court of Appeal in Faryna v. Chorny, (BC CA), 1951 CarswellBC 133,is 'in harmony with the preponderance of probabilities which a practical [and] informed person would readily recognize as reasonable inthat place and in those conditions'". I recognize I am "not to rely on false or frail assumptions about human behavior".

Also, "In assessingcredibility there is no principle of law that requires a trier of fact to believe or disbelieve a witness's testimony in its entirety. On thecontrary, a trier may believe none, part of, or all a witness's evidence, and may attach different weight to different parts of a witness'sevidence". (Novak at para. 37) [31] The difference between the statements Ms. Koppernaes made in her affidavit and the factual information she acknowledgedduring cross-examination is striking. When she prepared her affidavit did she truly believe her statements to be true?

Perhaps sheconvinced herself that her version of the facts must be true to justify her actions which she acknowledged to be petty, vindictive andhurtful. When she was confronted with irrefutable facts, contradicting statements in her affidavit, her illusions were shattered. She has nocredibility. I accept Mr. VonMaltzahn’s evidence that the items on his list attached as

Schedule “A” to this decision were all removed byMs. Koppernaes, and that, prior to their removal, they were undamaged. [32] Mr.VonMaltzahn was very familiar with the contents of Green Bay because he and Ms. Koppernaes had expended a vastamount of time, energy and expense in compiling lists of every possession they acquired during their marriage, so each could confirmwhat he or she wanted to keep. [33] As can be seen from

Schedule “A” many of the items removed have been returned, but the process to accomplish this wasdrawn out and protracted. As with the previous delivery of items as required by the Interim Order, letters were exchanged betweencounsel, consults between counsel and client were required, delivery instructions were developed, with others involved so they couldmark check- off lists and confirm delivery. [34] The avalanche of paperwork generated by a simple request to implement the terms of the Interim Order and later to return itemsshe had taken in November indicates how far Ms.

Koppernaes was prepared to go to continue the dispute even when encouraged bycounsel to cooperate. Remedies Enforcement [35] I will not entitle Mr. VonMaltzahn to enter properties owned by Ms. Koppernaes to search for and retrieve items she has notreturned to him. Many of those are, as he has commented, of sentimental value. He may not find them on her properties. To encourageher to return those items and comply with the original order, I have assigned a value greater than the value suggested by Mr.VonMaltzahn. I do not accept the proposition that Ms. Koppernaes should benefit from her wrongful action because Mr.

VonMaltzahncannot assign a “replacement value” to these items. [36] If the items below are returned to him within two weeks from the date of this decision she will not be required to pay him theamounts I have assigned: • Framed painting of the previous house on the Green Bay property painted by their son - value $1,000.00 • Framed painting by their daughter of the present house on the Green Bay property - value $1,000.00 • Mimeographed sheet announcing his wining president of the student council in 1972 - value $250.00 • hand made canoe paddle - value $500.00

[37] I recognize the court in Mason v. Westside Cemeteries Ltd., 1996 CarswellOnt 1316 commented the “sentimental value”assigned to goods must be based in some manner on the actual value of the goods and not be purely “fanciful”. I do not accept the valuesI have assigned are fanciful. Ms. Koppernaes can avoid paying the values I have assigned by returning the items. If she does not Isuggest that indicates they are worth the values I have assigned. [38] For the items that have no sentimental value I have used the values assigned by Mr. VonMaltzahn for distinct items.

No othersuggested values have been provided and I am satisfied with the process he used to assign the values he chose. He reviewed Kijiji andused average values for similar items. For antiques he visited an antique store to determine values for similar items. I am not prepared toassign any value for Kitchen ware or Gardening tools because these are generic descriptions. I have no exact description of what wastaken to which individual values could be assigned. [39] Ms. Koppernaes is to pay Mr. VonMaltzahn $4,303.00 as compensation for the “Other Items” removed from the Green Bayproperty.

Trespass [40] The requirements for trespass are set out in MacQueen v Sydney Steel Corp., 2013 NSCA 143: 88 The trial decision in Smith v Inco Ltd., 2010 ONSC 3790 (Ont. S.C.J.), supplies a useful

summary of the trespass….: [37] The essential characteristics of a trespass to land are concisely sets out in Grace v. Fort Erie (Town), (ON SC),[2003] O.J. No. 3475 (S.C.J.) at para. 86, and in R. & G. Realty Management Inc. v Toronto (City), [2005] O.J. No. 6093 (S.C.J.) at para.40, as follows: 1. Any direct and physical intrusion onto land that is in the possession of the plaintiff; 2. The defendants act need not be intentional, but it must be voluntary; 3. Trespass is actionable without proof of damage. [41] Ms.

Koppernaes argued, when she entered the property, she had a possessory right to do so because the deed to the Green Bayproperty remained in the parties’ joint names. This invites the court to ignore the effect and purpose of the Interim Order, the obligationsit created and the knowledge she had about the effect, purpose and obligations of that Interim Order. Had Mr. VonMaltzahn asserted aright to enter “her property” at Beech Street, without her consent, I am sure she would have denied his right of entry.

As Mr.VonMaltzahn explained in paragraph 16 of his affidavit filed as Exhibit “4” at the Motion hearing: 16…… Karen has known all along that the deeds would only be exchanged concurrent with the refinance, and in the meantime GreenBay is mine and Beech Street is hers, even if title is not transferred. Even though we each signed deed recently, neither has beenregistered because the escrow conditions have not yet been reached. However, if Karen had any questions or doubts about the status ofthe properties, she continues to have lawyers on retainer to ask. [42] Ms. Koppernaes trespassed onto Mr.

VonMaltzahn’s property. He argues she did so from November 17 until the 20th when sheprovided a key to the property to her counsel. Each day a person enters onto the property of another is a new occasion of trespass.(Williams v Mulgrave (Town), 2000 NSCA 24). [43] The exact number of days during which Ms. Koppernaes entered the property is unknown. She has admitted to entering theproperty and counsel for both of the parties understood she had done so on November 17, however, she did retain the key untilNovember 20 and this certainly provided her an opportunity to come and go from the property at her pleasure.

In addition, given thenumber of items she had removed from the property it is reasonable to conclude she was in about that property for more than one day. Inan email she sent to Mr. VonMaltzahn’s brother on November 19, 2017, she said “stopped into my summer home this past week to saygoodbye, and pick up my personal belongings as our excruciating divorce will finally be over.”. (Exhibit # 3 attached to Exhibit # 2 filedin the Motion hearing) This may suggest by November 19 she had completed her mission and it took her 2 days to take what she wantedfrom the Green Bay property. [44] I find Ms.

Koppernaes’ trespass occurred on November 17 and 18, 2017. Conversion [45] In Fraser v. 3102602 Nova Scotia Ltd. 2015 NSSC 207 the court sets out the requirements for conversion: 27…..Fridman, in The Law of Torts in Canada, 2nded. (Toronto: Carswell, 2002) at pp.135-136 sets out the basis for a claim ofconversion: Conversion consists in a wrongful taking, using or destroying of goods or the exercise of dominion over them that is

inconsistent with the title of the owner. It is an intentional exercise of control over a chattel which seriously interferes with the right ofanother to control it. There must be a voluntary act in relation to another's goods amounting to a usurpation of the owner's proprietary orpossessory rights in them. Before a person can be found responsible for conversion, the court must be satisfied that he either knowinglyor carelessly, without ascertaining or attempting to ascertain who the true owner of the property was, took possession of goods andexercised some dominion over them....

Succinctly put, conversion is "a positive wrongful act or dealing with the goods in a manner, andwith an intention inconsistent with the owner's rights." Such statements indicate the essential features of the tort of conversion to be: (

i) a wrongful act; (ii) involving a chattel; (iii) consisting ofhandling, disposing or destruction of the chattel; (iv) with the intention or effect of denying or negating the title of another to suchchattel... [46] While most of the items taken by Ms. Koppernaes were returned some were not. She knew those items were to be in thepossession and ownership of Mr. VonMaltzahn. [47] Ms. Koppernaes has committed the tort of conversion. Invasion of Privacy [48] The elements of this tort are set out in Doucette v. Nova Scotia, 2016 NSSC 25: 169 The recognition of this tort in Ontario can be found in the case of Jones v.

Tsige, 2012 ONCA 32 , [2012] O.J. No.148 (Ont. C.A.). In that case, the defendant used her work computer at BMO to repeatedly access the personal banking information ofthe plaintiff, for a period of four years. After much discussion, the court agreed that there existed, in Ontario, the tort of invasion ofprivacy, or intrusion upon seclusion.

As to its elements, it held: 70 I would essentially adopt as the elements of the action for intrusion upon seclusion the Restatement (Second) of Torts (2010)formulation which, for the sake of convenience, I repeat here: One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject toliability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person. 71 The key features of this cause of action are, first, that the defendant's conduct must be intentional, within which I would includereckless; second that the defendant must have invaded, without lawful justification, the plaintiff's private affairs or concerns; and third,that a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish.

However, proof of harmto a recognized economic interest is not an element of the cause of action. I return below to the question of damages, but state here that Ibelieve it is important to emphasize that given the intangible nature of the interest protected, damages for intrusion upon seclusion willordinarily be measured by a modest conventional sum. 72 These statements make it clear that recognizing this cause of action will not open the floodgates. A claim for intrusion upon seclusionwill arise only for deliberate and significant invasions of personal privacy.

Claims from individuals who are sensitive or unusuallyconcerned about their privacy are excluded: it is only exclusions into matters such as one's financial or health records, sexual practicesand orientation, employment, diary or private correspondence that, viewed objectively on the reasonable person standard, can bedescribed as highly offensive…. 172 It has been recognized that, in an appropriate case, a Nova Scotia court could award damages for the tort of invasion of privacy or"intrusion upon seclusion (Trout Point Lodge Ltd. v. Handshoe, supra). [49] When Ms. Koppernaes entered Mr.

VonMaltzahn’s property, she entered his residence. He lived in this residence. He shared itwith others of his choosing. She knew she had no permission or “right” to enter that residence nor to take anything from it. She tookpictures of many of his possessions, she opened drawers and closets to find and remove items she wanted. She took a tent that belongedto Mr. VonMaltzahn’s partner. In her e-mail to Mr. VonMaltzahn’s brother (Exhibit # 3 attached to Exhibit # 2 filed in the Motionhearing) she said: …The upstairs bedroom has been converted into a workshop and every bit of space is stuffed with, well “stuff”.

It really hurt to see thescore sheet of a Scrabble game with the names of my child and Chris’s “new family” when I rarely see or spend any time with mine… [50] Not only did Ms. Koppernaes enter the property herself but she invited others to join her.

[51] Applying the objective reasonable person standard, I find her actions to be highly offensive. They provide content for anightmare - to have one’s ex-spouse prowling around one’s residence, opening and closing drawers and closets, touching one’s personalbelongings and taking what was wanted. Monetary Award/Damages [52] Counsel spent some time discussing how the court should approach the assessment of damages to compensate for any findingthat Ms. Koppernaes committed the torts of trespass, conversion and invasion of privacy. All three torts arise from the samecircumstances, but all are separate and distinct.

Counsel for Ms. Koppernaes argued it would be inappropriate to provide three separateawards for one act of wrongdoing. Counsel for Mr. VonMaltzahn agreed that one global award might be considered but to determine anappropriate monetary amount it would be useful to reflect upon the different purposes to be achieved in granting recovery under eachindividual tort. [53] Counsel also spent some time discussing differences between Compensatory Damages, General Damages, Special Damages,and Punitive Damages. I can add to that list Aggravated Damages and Nominal Damages.

The differences are not always obvious andone’s eyes glaze over when reading material that attempts to explain those differences. Any may be available in a successful tort claim. [54] Compensatory Damages are calculated with the theoretical goal to place a person in the position they would have been had thetort not occurred insofar as this can be achieved by a monetary award. (Ratych v. Bloomer, (SCC), [1990] 1 S.C.R. 940]It contemplates what monetary losses the plaintiff has experienced, immediate and foreseeable in the future, because of the tort. Themonetary award I have ordered, if Ms.

Koppernaes does not return the items listed in paragraph 36, is a compensatory damage award asis the award provided in paragraph 39. [55] General Damages are for losses that cannot be given an exact monetary assessment. In a personal injury case they cover claimsfor pain and suffering, disfigurement, loss of enjoyment of life etc. [56] Special Damages are for losses that can be exactly measured monetarily, for example repair costs. [57] Punitive Damages are awarded to deter a defendant from committing torts in the future and as punishment.

They are grantedwhen a plaintiff proves the defendant’s conduct was “ …so malicious, oppressive and high-handed that it offends the court’s sense ofdecency.” ( Hill v. Church of Scientology of Toronto, (SCC), [1995] 2 S.C.R. 1130 at para.199) and is a “…markeddeparture from ordinary standards of decent behaviour” ( Whiten v. Pilot Insurance Co., 2002 SCC 18 at para. 36.) [58] In Whiten (supra) the Supreme Court of Canada set out a number of factors the court should consider.

The award is to beproportionate to the blameworthy conduct, the vulnerability of the plaintiff, the harm or potential harm directed toward the plaintiff, theadvantage wrongfully gained by the defendant, the need for deterrence, and the other penalties assessed against the defendant because ofhis or her misconduct. Trespass [59] When there is no actual damage to property, the award is usually for general damages in a token amount for “relativelyinnocuous” trespasses. (McInnis v. Stone, 2016 NSSC 69; Bourgoyne v.

Hutton, 2016 NSSC 60) [60] “Egregious” behaviour may attract a more substantial award. [61] This was not a “relatively innocuous” trespass. The trespass to Mr. VonMaltzahn’s property continued for at least two days,other people were invited to join Ms. Koppernaes as she trespassed on that property. She assumed control over the property to do as shewished. Ms. Koppernaes must pay Mr. VonMaltzahn $5,000.00 in general damages for her trespass. [62] Because of Ms. Koppernaes trespass Mr. VonMaltzahn’s was forced to change the locks on his property.

In addition, becausehe feared she might trespass again, he purchased a security system. Ms. Koppernaes must pay Mr. VonMaltzahn $2,200.00 for specialdamages. [63] By her own description Ms. Koppernaes’ actions were impulsive and vindictive. I find they were deliberate. They wereoutrageous and displayed a wilful disregard of Mr. VonMaltzahn’s right to exclusive possession and ownership of his property. They aredeserving of censure in addition to the general damages that have been awarded for her trespass. Ms. Koppernaes must pay Mr.VonMaltzahn $6,000.00 for punitive damages.

Conversion [64] I have already provided a compensatory damage award for items not returned to Mr. VonMaltzahn. Invasion of Privacy [65] This tort does not require proof of damage. How a court might determine the amount of an award was discussed in Doucette v.Nova Scotia, 2016 NSSC 25. In that case Justice Boudreau quoted from Jones v Tsige 2012 ONCA 32 , [2012] O.J. No. 148(Ont. C.A.) :

87 In my view, damages for intrusion upon seclusion in cases where the plaintiff has suffered no pecuniary loss should be modest butsufficient to mark the wrong that has been done. I would fix the range as up to $20,000.

The factors identified in the Manitoba PrivacyAct, which, for convenience, I summarize again here, have also emerged from the decided cases and provide a useful guide to assist indetermining where in the range the case falls: 1. the nature, incidents and occasion of the defendant’s wrongful act; 2. the effect of the wrong on the plaintiff’s health, welfare, social business or financial position; 3. any relationship, whether domestic or otherwise, between the parties; 4. any distress, annoyance or embarrassment suffered by the plaintiff arising from the wrong; and 5. the conduct of the parties, both before and after the wrong, including any apology or offer of amends made by the defendant. [66] Ms.

Koppernaes’ actions caused Mr. VonMaltzahn great distress, annoyance and worry. Her removal of possessions from hisproperty was planned and deliberate. Her return of those objects was delayed and without genuine apology. Ms. Koppernaes must payMr. VonMaltzahn $7,000.00. Conclusion [67] In total Ms. Koppernaes must pay Mr. VonMaltzahn $20,200.00. Costs [68] Mr. VonMaltzahn has requested $10,000.00 for solicitor client costs. [69] Solicitor and client costs are awarded in “rare and exceptional circumstances”.

In Brown v Metropolitan Authority, 1996NSCA 91 , 150 N.S.R. (2d) 43 (C.A.) Justice Pugsley stated: 81 While it is clear that this Court has the authority to award costs as between solicitor and client, it is also clear that this power isonly exercised in rare and exceptional circumstances, to highlight the court's disapproval of the conduct of one of the parties in thelitigation (P.A. Wournell Contracting Ltd. v.

Allen (1980), (NS CA), 37 N.S.R. (2d) 125) (C.A.). 82 This court has refused to award costs as between solicitor and client even though the conduct of the party in question has beenfound to be reprehensible. (Lockhart v. MacDonald (1980), (NS CA), 42 N.S.R. (2d) 29; Warner v.

Arsenault (1982), (NS CA), 53 N.S.R. (2d) 146) 83 The word "reprehensible" is defined in The Concise Oxford Dictionary (1990) as "deserving censure or rebuke". 84 The conduct of the Authority, in my opinion, deserves that description. 85 There is, however, a difference between reprehensible conduct as demonstrated here, and those rare and exceptional circumstanceswhich attract the sanction of costs as between solicitor and client.

In my opinion, the Authority's actions do not cross that line, andaccordingly, I would not award costs as between solicitor and client. [70] In Brown, ibid para.80, the court found the Authority’s conduct not only deserving of censure or rebuke but also to have been“arbitrary and highhanded”. A review of case law suggests solicitor and client costs may be reserved for those cases when there isproven fraud or a deliberate attempt to mislead. However, bad behavior can justify an increased cost award. [71] I do find Ms. Koppernaes’ behavior to be reprehensible and highhanded. It was also deliberate.

However, I am not satisfied itmeets the criteria for a solicitor and client cost award. It does argue in favour of an increased party and party cost award. [72] Mr. VonMaltzahn was the successful party on the Motion and it “was determinative of the entire matter at issue in theproceeding”. (Civil Procedure Rule 77.18, Tariff C (4) [73] I do not consider it appropriate to apply Tariff C to calculate this cost award. This was not a typical Motion. It involved boththe enforcement of an Order and tort claims.

Several court appearances and a two day hearing were required. [74] It is also inappropriate to use the tariff of cost and fees to resolve the quantum of this cost award. While a court is directed touse the tariff as the first guide in determining the appropriate quantum of a party and party cost award, it is also directed to “make anyorder about costs as the judge is satisfied will do justice between the parties”. (Civil Procedure Rule 77.02(1)) [75] The amount of a party and party cost award should represent a substantial contribution towards reasonable expenses but shouldnot amount to a complete indemnity.

A substantial contribution suggests an amount more than 50% and less than 100% of a lawyer’sreasonable bill. (Armoyan v. Armoyan, 2013 NSCA 136) [76] I am informed by counsel Mr. VonMaltzahn’s legal expense relating to this Motion will be $10,000.00. It may be more but thisis the amount I have been asked to consider.

[ 77 ] A decision about costs must include a consideration about what are “reasonable legal expenses”. On what basis can I make this determination? I have not been provided with any decisions about how this task can be undertaken. Although Civil Procedure Rule 77.13 relates to the taxation of counsel’s fees and disbursements, it may provide some guidance: 77.13(1) Counsel is entitled to reasonable compensation for services performed, and recovery of disbursements necessarily and reasonably made, for a client who is involved in a proceeding.

(2) The reasonableness of counsel’s compensation must be assessed in light of all the relevant circumstances, and the following are examples of subjects and circumstances that may be relevant on the assessment: (

a) counsel’s efforts to secure speed and avoid expense for the client; (

b) the nature, importance, and urgency of the case; (

c) the circumstances of the person who is to pay counsel, or of the fund out of which counsel is to be paid; (

d) the general conduct and expense of the proceeding; (

e) the skill, labour, and responsibility involved; (

f) counsel’s terms of retention, including an authorized contingency agreement, terms for payment by hourly rate, and terms for value billing. [ 78 ] I have considered each of these factors except for items (

c) and (f). Counsel in this case, as is common, has not provided information about the terms of engagement. Even had counsel done so, what would be the comparative analysis the court could use to determine whether, for example, hourly rates charged are “reasonable”?

Counsel may charge different hourly rates within the same jurisdiction for a multitude of reasons. [ 79 ] The direction that costs are to be awarded to indemnify a client for his or her “reasonable legal expenses” guides the exercise of discretion towards an examination the factors listed rather than a minute examination of the dollar for dollar charge attached to that legal expense. For example, legal expenses in the amount of $10,000.00 would not be reasonable in an uncomplicated case, quickly resolved with few court appearances. [ 80 ] Counsel for Mr. VonMaltzahn made efforts to resolve this matter quickly.

On December 14, 2017 she sent a letter containing an itemized list of the items removed from the property to counsel acting for Ms. Koppernaes, with a request that she return those items immediately. Had Ms. Koppernaes done so the legal expense to Mr. VonMaltzahn would have been nominal. Understandably it was very important for Mr. VonMaltzahn to have his possessions be returned. His counsel applied skill in developing the factual material and submissions to present the tort claims and to provide an analysis of the remedies that were applicable. Two days were required to hear the Motion. [ 81 ] Mr.

VonMaltzahn’s legal expenses were reasonable. A lump sum approach is to be used to determine quantum. His legal costs were incurred because Ms. Koppernaes insisted on litigating when her case had no merit in the course of which her behaviour is deserving of rebuke. This argues for an award approaching but not providing full indemnity. [ 82 ] Ms. Koppernaes is to pay Mr. VonMaltzahn $7,500.00 for costs on this Motion. ______________________________ Beryl A. MacDonald, J.

“Schedule A” Sentimental Items # Item Return Date Value Claimed 1 Contents of black wood chest in living room, including slides and photo prints Some May 31 2018 More June 19 2018 2 Antique side table from beside the sofa.

May 31, 2018 3 4 person tent, bought in 2016 March 21, 2018 4 Gold hoop earrings (belonging to Leslie Anne Campbell) Leslie to pursue 5 Antique copper weather vane May 31, 2018 $400 6 Folk art rooster carving June 19, 2018 7 Folk art goose carving May 31, 2018 $250 8 Duck carving June 19, 2018 9 Painting of Rissers Beach by our son Alex $100 10 Framed painting of the previous house we had on the property in Green Bay, by our son Alex (the value shown here is more the value of the frame than the artwork, but there is no price I would sell it for) $100 11 Framed painting by our daughter Maia of the present house on the property in Green Bay (the value shown here is more the value of the frame than the artwork, but there is no price I would sell it for) $100 12 Mimeographed sheet announcing my winning president of the student council in 1972 $1 13 Mounted underwater photo of our 3 kids swimming (the value shown here is more the value of the frame than the artwork, but there is no price I would sell it for) June 19, 2018 14 Framed picture of our family with Rolling Stones tickets (the value shown here is more the value of the frame than the artwork, but there is no price I would sell it for) June 19, 2018 15 3 “for display only” hand made canoe paddles (walnut, cherry, and pine), 2 by made by our son Alex, one by our daughter Maia. (Alex recently returned his two - I still want the third) (again, I would not sell these at any price) 2 returned by Alex Last one still not returned $100 16 Chest of drawers May 31, 2018 17 Robert Rutherford Painting March 21, 2018 $400 Total: $1,451 x 2 for sentimental value = $2,902 Other Items 18 Large wooden salad bowl May 31, 2018 19 3 pyrex nesting mixing bowls June 19, 2018 20 3’ x 5’ Persian rug that was in upstairs bedroom $250 21 Kayak Was returned to me in November 2017, and has since been provided to Karen per Interim Order

22 Boat model May 31, 2018 23 Carved stone sculpture Returned damaged $1400 24 2 kayak paddles May 31, 2018 25 Roof rack for kayak May 31, 2018 26 Framed painting from above the bed in the upstairs bedroom May 31, 2018 27 Framed painting from upstairs bedroom (Anna’s bedroom) May 31, 2018 28 Framed painting of fish swimming 250 29 Linens May 31, 2018 30 Building material for bookshelves 100 31 Washing machine from the basement 750 32 Carved wooden fish that hung on the wall in the bathroom May 31, 2018 33 Utility knife 15 34 Bag of clothing that was at the top of the basement stairs Don’t care 35 Guest book from drawer in dining room hutch June 19, 2018 36 Rocking chair 450 37 Glass salad bowl 70 38 Kitchen war 150 39 Mounted photograph poster of Nova Scotia from space June 19, 2018 40 Canoe – light weight Kevlar canoe May 31, 2018 41 Canoe paddles May 31, 2018 42 Adult life jacket 60 43 Large blue storage container Returned damaged May 31, 2018 30 44 2 sets of straps for securing kayaks to roof racks One May 31 2018 One June 19 2018 45 Lawnmower (gas engine) 350 46 2 forged iron candle holders May 31, 2018 47 Blue and white tea pot and matching creamer and sugar pot May 31, 2018 48 Sugar bowl, white porcelain with a strawberry on the lid 30 49 Large blue glass mixing bowl May 31, 2018 40 50 Painting easel May 31, 2018 100 51 Vase/pitcher (off white one) June 19 2018 52 3 candle holders with fish design May 31, 2018 53 Brass candlestick table lamp 100 54 Bird bath May 31, 2018 55 3 paintings of fish and the forged hooks 2 returned May 31, 2018.

Last one still missing 83 56 Wet suit Don’t care 57 Hiking boots Don’t care 58 Rubber boots Don’t care 59 Walking sticks 100 60 Painting canvasses and supplies Don’t care 61 Raincoat Don’t care 125 62 Gardening tools 150 Total: $4,603