Armoyan v. Armoyan, 2013 NSCA 42

NOVA SCOTIA COURT OF APPEAL Citation: Armoyan v. Armoyan , 2013 NSCA 42 Date: 20130405 Docket: CA 407024 Registry: Halifax Between: Lisa Armoyan Appellant v. Vrege Sami Armoyan Respondent Judge: The Honourable Mr. Justice Jamie W.S. Saunders Motion Heard: April 4, 2013, in Halifax, Nova Scotia, in Chambers Held: Motion to settle contents of the Appeal Book allowed. Counsel: Mary Jane McGinty, for the appellant Gordon R.

Kelly and Stacey O’Neill, for the respondent Decision: [ 1 ] At the conclusion of today’s hearing in Chambers I gave a quick outline of my decision, told counsel that I would likely file brief written reasons, and asked Mr. Kelly, counsel for the respondent to prepare the necessary order confirming today’s directions. [ 2 ] These are my reasons. To provide context a short

summary will suffice. [ 3 ] The parties have been locked in complicated and extensive matrimonial litigation in both Nova Scotia and Florida since the fall of 2009. The appellant, Lisa Armoyan presently resides in Florida. The respondent, Vrege Armoyan lives in Nova Scotia. [ 4 ] A panel of this Court will hear an appeal from the decision of Nova Scotia Supreme Court (Family Division) Justice Douglas C.

Campbell dated September 14, 2012 (reported 2012 NSSC 323 ) on June 19-20, 2013. [ 5 ] That appeal actually involves two actions, CA 389169 and CA 407024, which were consolidated by order of this Court dated September 26, 2012. [ 6 ] The appeals relate to alleged errors by Justice Campbell in concluding that he had and ought to exercise jurisdiction over the parties’ divorce and various other ancillary proceedings as well as his substantive and procedural rulings with respect to those matters. [ 7 ] It is enough to know that Campbell, J. took jurisdiction over three discrete proceedings being litigated by the parties: the lis

pendens concerning an alleged slander on the title of the parties’ matrimonial home in Halifax; proceedings initiated in Halifax under the Maintenance and Custody Act , R.S.N.S. 1989, c. 160; and the divorce proceeding initiated by Mr.

Armoyan in Nova Scotia. [ 8 ] In simple terms, the matters under appeal relate to the appellant’s various motions contesting the jurisdiction of the Nova Scotia Supreme Court in those proceedings and her assertion that they ought only be litigated and decided in the State of Florida, United States of America where she currently resides. [ 9 ] The appellant filed a notice of appeal from Justice Campbell’s decision on September 18, 2012.

That Notice of Appeal was amended on October 9, 2012 and sets out 21 grounds of appeal relating to the appellant’s challenge to Justice Campbell’s seizing and exercising jurisdiction. [ 10 ] The appellant filed the appeal book (comprising some 14 volumes) on March 7, 2013. Counsel for the respondent challenged the contents of the appeal book, essentially on two fronts. First, Mr. Kelly complained about one document in the appellant’s 14-volume set and asked that it be removed.

Second, he sought the inclusion of some 35 other items by way of a proposed supplemental appeal book. [ 11 ] The parties first appeared before me in Chambers on March 14 when Ms. McGinty on behalf of the appellant Ms. Armoyan sought directions for a fresh evidence application she intended to make, and Mr. Kelly for the respondent Mr. Armoyan sought to “piggyback” on the appellant’s motion and have his challenge to the contents of the appeal book heard at the same time. After hearing their submissions I directed that Ms.

McGinty’s fresh evidence application ought to be considered by the panel assigned to hear the appeal on the merits in June. I understand that a panel has now been assigned and will be able to direct counsel as to how it intends to proceed with the appellant’s fresh evidence application. [ 12 ] I directed Mr. Kelly to bring a formal motion under the Rules to settle the contents of the appeal book, if counsel could not otherwise agree, and I set today, Thursday, April 4, 2013 for that hearing, if required. [ 13 ] That then is the context in which this morning’s hearing unfolded.

Both parties filed extensive submissions. [ 14 ] In addition to his notice of motion and his brief, Mr. Kelly produced two bound and tabbed volumes which comprised what he hoped to have accepted for filing as the supplemental appeal book. The first volume is about ¾ of an inch thick and is labelled “Supplemental Appeal Book (Part 1 – Pleadings and Related Documents)”. The second is about an inch and a half thick and is labelled “Supplemental Appeal Book (Part II – Evidence and Related Materials)”.

In the respondent’s submission these materials are relevant and necessary to effectively deal with the myriad of issues raised by the appellant in her amended Notice of Appeal and to complete the picture, add proper context, and “give a flavour” to the variety, substance and sequence of the appellant’s motions, all of which form the basis of the trial judge’s decision which is the subject of this appeal. [ 15 ] In her response to the motion, Ms.

McGinty filed her brief dated April 2, 2013 and made reference to her factum filed March 28, together with a helpful abridged appeal book (one volume) which is intended to assist the panel in June when cross-referencing her written submissions to the record. For her part Ms. McGinty said much of the material sought to be included in the appeal record by Mr. Kelly was neither relevant, nor helpful, nor in accordance with the stipulations contained in the Civil Procedure Rules . She said she had done her best to comply with CPR 90 and keep the record manageable.

She endeavoured to limit the contents of the appeal book to the issues addressed in her amended Notice of Appeal, and as further refined and distilled in her factum so that the panel would have what it needed to address the merits, but nothing more. As the appellant put it in her Chambers motion brief, the materials sought to be introduced by the respondent: ...have been chosen specifically to prejudice her and direct the court’s attention away from the merits of the appeal. [ 16 ] Should Mr. Kelly’s supplemental materials be allowed, then Ms.

McGinty said she ought to be permitted to file other information so that the panel would understand the context and not be left with a one-sided or distorted view. [ 17 ] After hearing counsels’ oral submissions this morning it appeared to me that the basis or reasons for any disagreement as to approved contents had dissipated and that both sides were relatively content (or at least not vigorously opposed) to what each other had requested. [ 18 ] There would now seem to be little point in my going through every one of the 35 tabbed items set out in Mr.

Kelly’s proposed 2-volume supplemental appeal book, simply to identify what they are, or particularize what each counsel’s position was with respect to it. [ 19 ] Rather, I propose to summarize the conclusions I reached and the directions I gave. Costs [ 20 ] Mr. Kelly, for the applicant/respondent sought $2,000 costs for today’s hearing. I declined to award costs for the reasons given.

Owing to the very unique features of this case including the fact that extensive litigation has ensued and continues in two countries, and that two days have been set aside for a panel of this Court to consider the merits of a decision rendered by a trial judge who has seized and exercised jurisdiction, it is very difficult for a single judge of this Court sitting in Chambers to assess and decide what ought to be included as part of the record on appeal, or what costs ought to flow as a consequence. [ 21 ] As I said at today’s hearing, counsel are senior, experienced litigators who know their case. Mr.

Kelly’s request to include two relatively small, bound volumes of material will not add unduly to the already voluminous record. Their addition should not impede, and may well assist the panel’s consideration of the merits of the appeal, or at the very least help Mr. Kelly in advancing his arguments. I am not persuaded that their acceptance will in any way prejudice the appellant’s interests.

Many of the documents sought to be included in the record are “neutral” in the sense that they are transcripts of proceedings; copies of notices of motion (in other words, pleadings); affidavits that are referred to in other affidavits already part of the record; pre-trial conference memoranda of hearings convened in the

Family Division which, pursuant to CPR 26.01(2) have the same force and effect as a court order; or copies of counsels’ pre-hearing written submissions and correspondence to Justice Campbell that form part of this record, since they were referred to by counsel in their subsequent oral submissions at trial. [ 22 ] For these and other reasons the more sensible approach is to leave it to the panel hearing the appeal in June to assess the usefulness of this material and the steps taken to have it made part of the record.

The members of the panel will be in the best position to decide whether it assisted them in their deliberations or whether it was an utter waste of time. Those considerations can be reflected in whatever disposition of costs the panel deems appropriate. [ 23 ] I have no doubt that during her oral arguments in June Ms. McGinty will be able to add whatever context or commentary she thinks is necessary to amplify or better explain any item included by Mr. Kelly in his supplemental appeal book. The 14-Volume Appeal Book [ 24 ] Ms. McGinty agreed with Mr.

Kelly’s objection that a transcript of a discovery examination of the respondent Vrege Armoyan conducted at her office should not have been included. The document is entitled “Transcript of Deposition of Vrege Armoyan dated October 17, 2011”. It was never filed in evidence or otherwise made part of the record in the court below. [ 25 ] I directed that this document be removed from the appeal book. [ 26 ] Further, Mr. Kelly agreed with Ms.

McGinty’s request that pages 5507-5514 inclusive ought not to have been included in the appeal book and they will be removed. [ 27 ] Finally, in the carry-over or straddling between Volume 13 and Volume 14 of the appeal book, pages 5637-5673 inclusive are blank. It is agreed and I direct that while those pages will remain in the appeal book they were and are intended by counsel to be blank pages. Additional Material to be Filed by Ms. McGinty [ 28 ] So as to provide context for some of the materials included by Mr. Kelly in his supplemental appeal book, I permitted Ms.

McGinty to file as an additional volume and to be included within the appeal book, the transcript of a hearing on the record and in open court before Justice Campbell on December 20, 2010. Counsel said this transcript is 63 pages long. [ 29 ] In addition, Ms. McGinty will be permitted to file (if she chooses to do so) as part of the appeal book, her brief to Justice Campbell “on the issue of attornment” which apparently relates to a comment made by Ms. McGinty in her 15-page brief to Justice Campbell dated September 13, 2011 (found at Tab G of Mr.

Kelly’s Supplemental Appeal Book (Part II – Evidence and Related Materials)) where at p. 5 of 15 Ms. McGinty said: Ms. Armoyan has clearly attorned to this Court’s jurisdiction under the Matrimonial Property Act. [ 30 ] In his submissions this morning Mr. Kelly said he might need/wish to make reference to that letter, which he “took to be an admission” when responding to this appeal in June. Ms. McGinty felt it may be necessary to have her brief to Justice Campbell on this issue of “attornment” included as part of the appeal record to better explain the context in which she advanced that position. I gave Ms.

McGinty an opportunity to reflect and decide whether she wanted her brief to be included as part of the appeal record. If so, Ms. McGinty will advise Mr. Kelly and the Registrar and she will be permitted to do so. Conclusion [ 31 ] In my comments to counsel this morning I said I understood how difficult and acrimonious proceedings such as this can become, especially when one considers the fact that this long and continuing saga of litigation raises a host of complex and sometimes novel issues, heard or being heard in two countries.

In such unique circumstances, experienced counsel should and likely have made best efforts to sort out procedural impasses, while trying to avoid a waste of time and money on matters that are not so important, and narrow the issues to those that truly are. [ 32 ] But when counsel are unable to reach an accommodation, their only recourse is to seek the Court’s directions and relief under the Rules. [ 33 ] Today’s hearing was what I would term a “contest over contents” and because of the unusual features of this case to which I have already alluded, it was not one that was ideally suited to resolution by a single judge in Chambers.

As I have explained, the costs repercussions are best left to the panel whose members will be well placed to decide whether the materials I have added to their record were useful and necessary to the arguments and their deliberations, or a complete waste of time. [ 34 ] I do not wish to hamstring the panel in its work. Having carefully considered counsels’ submissions and reflected upon the nature and contents of the impugned documents sought under review, it seemed to be better to air on the side of caution and add slightly to the already extensive record.

In other words, it probably is wiser to have too much, than too little. At the very least, counsel at the appeal hearing will not be chastised for “giving evidence” but will instead be able to point to the record and explain the source. [ 35 ] Finally, because the appeal is less than three months away I reminded counsel that any further motions, of this kind, might be more appropriately considered by the panel itself, something I can easily do by reference pursuant to CPR 90.37(10)(d). Saunders, J.A.