Armoyan v. Armoyan

Armoyan v. Armoyan Court Court of Appeal Date 2013-09-10 Citation 2013 NSCA 99 Docket 407024, CA 389169 Judge/Registrar/Adjudicator MacDonald, J. Michael (Honourable Chief Justice) (CA); Fichaud, Joel E. (Honourable Justice) (CA); Bryson, Peter M.S. (Honourable Justice) (CA) Document Type Decision Relations Library Sheet - Armoyan v. Armoyan - 2013 NSCA 99 - 2013-09-10 - Library Sheet Decision Content NOVA SCOTIA COURT OF APPEAL Citation: Armoyan v. Armoyan, 2013 NSCA 99 Date: 20130910 Docket: CA 389169 CA 407024 Registry: Halifax Between: Lisa Armoyan Appellant v. Vrege Sami Armoyan Respondent Judges: MacDonald, C.J.N.S., Fichaud and Bryson, JJ.A. Appeal Heard: June 19-20, 2013, in Halifax, Nova Scotia Held: Fresh evidence from both parties is admitted, and: on CA 389169 - leave to appeal is granted, the appeal is allowed, and Condition # 2 of the Order of the Supreme Court (Family Division) is excised, with costs of the appeal to the Appellant in an amount to be determined separately; and on CA 407024 - leave to appeal is granted, the appeal is allowed in part, and the Florida Court is determined to be the forum conveniens for all matters, except that the Nova Scotia court is the forum conveniens for the division of matrimonial property further to an application under the Matrimonial Property Act of Nova Scotia, with costs for the proceeding in the Family Division and on the appeal to the Appellant in amounts to be determined separately, per reasons for judgment of Fichaud, J.A.; MacDonald C.J.N.S. and Bryson, J.A. concurring. Counsel: Mary Jane McGinty and Christine J. Doucet for the appellant Gordon R. Kelly and Noémi Westergard for the respondent Reasons for judgment: CONTENTS Paragraph 1. Background 2 2. The Florida Proceeding 17 (a) The Writ Ne Exeat 18 (b) Mr. Armoyan’s Hague Convention Petition 20 (c) Mr. Armoyan’s Disqualification Motion 27 (d) The Stay 32 (e) Mr. Armoyan’s Financial Disclosure 34 (f) Mr. Armoyan’s Stipulation to Avoid Disclosure 47 (g) Interim Support Order 54 (h) Costs Orders Against Mr. Armoyan 55 (i) Mr. Armoyan’s Default Under the Interim Support and Costs Orders 57 (j) Florida’s Enforcement of the Interim Support and Costs Orders 60 (k) Florida Court’s Consideration of Anti-Suit Injunction, Jurisdiction and Forum Non Conveniens 68 (l) The Florida Divorce 76 3. The Nova Scotia Proceeding 94 (a) Forum Conveniens for the Computer Issue 95 (b) Mr. Armoyan’s Second Divorce Petition 96 (c) Ms. Armoyan’s Forum Non Conveniens Motion 98 (d) Mr. Armoyan’s Movement of Assets 100 (e) Res Judicata of Florida Ruling on Privilege 108 (f) The Jurisdiction/Forum Non Conveniens Hearing 111 (g) Adjournment of February 24, 2012 113 (h) Ms. Armoyan’s Appeal of the Condition Restraining the Florida Proceeding 116 (i) Conclusion of the Jurisdiction/Forum Non Conveniens Proceeding 118 (j) Ms. Armoyan’s Appeal of Forum Non Conveniens Ruling 122 4. Issues 125 5. First Issue - Fresh Evidence 127 (a) The Law on Fresh Evidence 131 (b) Application of the Palmer Tests 134 (c) Admissible Form of the Evidence 143 (d) Conclusion - Fresh Evidence 158 6. Second Issue - The Adjournment Appeal 163 (a) Standard of Review 172 (b) The Effect of Condition #2 177 (c) Procedural Error 181 (d) Substantive Error 188 (e) Mootness 205 (f) Conclusion - Adjournment Appeal 206 7. Third Issue - Forum Non Conveniens Appeal 207 (a) Jurisdiction Simpliciter - Mr. Armoyan’s “Ordinary Residence” 210 (b) Court Jurisdiction and Proceedings Transfer Act, s. 12 217 (c) Ms. Armoyan’s Advancement of the Florida Proceeding 225 (d) Conflicting Decisions 239 (e) Juridical Advantage 256 (f) Comity and the “Nova Scotia Family” 262 (g) Comparative Fairness and Efficiency 273 (i) Division of Matrimonial Property 276 (ii) Child and Spousal Support 283 • Access to Justice 284 • Functional Effectiveness 292 • Respect for Stipulation 310 • Conclusion 311 (h) The Marital Agreement 313 (i) Res Judicata/Issue Estoppel 332 (ii) Validity of Forum Selection Clause - Merits of Issue 357 (iii) Strong Cause Doctrine 359 8. Fourth Issue - Admissibility of Evidence 361 9. Conclusion 376 [1] This divorce is tangled in a legal mesh that stretches between the courts of Florida and Nova Scotia. The appeal involves the forum non conveniens principles. Those principles include comity and comparative fairness and efficiency in the administration of justice. 1. Background [2] Mr. Armoyan was born in Tartous, Syria, and came to Nova Scotia at a young age. Ms. Armoyan was born in Toronto. They married in Toronto in October 1993. He was 32, and she was 21. This has been the only marriage for either. They resided in Toronto until they moved to Halifax in 1996. Their marriage was traditional, soon producing three children. Their son was born in 1995 while they were in Toronto. Their daughters were born in 1996 and 1998, while the family was in Halifax. The family resided in Halifax from 1996 until the summer of 2007. [3] Mr. Armoyan is a successful businessman who “enjoyed a very substantial net worth”, according to the decision under appeal (2012 NSSC 323, para 31). The Florida judge who tried the matter found “the parties during their intact marriage accumulated a net worth in excess of $50 million” (below, para 88). Though Mr. Armoyan has disclosed the first page of some tax returns, he has not provided full income disclosure in the nearly four years since the divorce proceedings began. Ms. Armoyan’s 2007 T1 General Tax Return, prepared while they were together, reported that Mr. Armoyan’s net income for 2007 was $6,882,336.76. [4] For the 2007-08 school year in Toronto, the family inhabited rented premises, while they secured their Halifax house. The first page of Mr. Armoyan’s T1 General 2007 tax return said his “residence” was Ontario. [5] By February 2008, the Armoyans’ marriage had developed some strains. [6] On February 28, 2008, while they were living in Toronto, Mr. and Ms. Armoyan flew to Halifax to sign a document entitled “Agreement Dealing With Matrimonial Relationship, Assets and All Matters Related Thereto” (“Marital Agreement”). Nova Scotia was advantageous to Mr. Armoyan because, generally, business assets are not “matrimonial assets” under Nova Scotia law. The Marital Agreement said: (1) a $2 million trust would be established for Ms. Armoyan, “to be solely managed by the Husband” as the Trustee, which she could draw down by instalments, (2) Ms. Armoyan released any claim she might have to support payments or to the matrimonial home and other assets, (except for her own RRSP, personal effects and one vehicle to be transferred to her father) and, (3) of particular relevance to this appeal: 20. PROPER LAW The parties hereto agree that the law governing this Agreement is the law of Nova Scotia and further agree that any court action taken in connection with any of the matters outlined herein is to be brought in the courts of Nova Scotia and no other jurisdiction. The Marital Agreement attaches certificates of independent legal advice signed by counsel for each of Mr. and Ms. Armoyan. Mr. Armoyan’s lawyer, who drafted the Marital Agreement, testified that his objective was to prepare a “bulletproof” agreement. Later, I will review the Agreement’s treatment by the Florida Court and by the judge in the Decision under appeal (paras 79-80 and 313-60). After signing the document in Halifax on March 1, 2008, Mr. and Ms. Armoyan flew back to Toronto. [7] In the summer of 2008, after their Toronto lease expired, the family stayed in Halifax for several weeks. Then, at the end of August 2008, the family moved to Florida. The judge’s decision under appeal said: [15] A decision evolved by which the family would relocate to Boca Raton Florida, USA. The parties have opposite perspectives about how that had developed. The Petitioner [Mr. Armoyan] placed considerable emphasis on a mutual desire to try a fresh start in Florida as part of a plan to revitalize their marriage which had faced difficulty. A company in which he had an interest gave him a contract of employment by which he would pursue certain business interests in Florida for the company. The letter of employment confirms that he may be required to relocate the family to Florida for as much as three years. A one-year employment non-immigration visa, sponsored by the company was obtained. The family moved there for the school year 2008/09 and lived in rented and furnished accommodation. The company that employed Mr. Armoyan for his time in Florida was Armco Capital Inc. (“Armco”). Armco had a substantial land development business and was controlled by Mr. Armoyan and his brother George Armoyan. [8] In August 2008 Mr. Armoyan signed a lease for 800 NE Harbour Drive, in Boca Raton, Florida. From September 2008 to June 2009, their three children attended school in Boca Raton. Mr. and Ms. Armoyan lived in their Florida home with the children. Ms. Armoyan visited relatives in Toronto for several weeks in the spring of 2009. Mr. Armoyan travelled outside Florida, including to Halifax, for business reasons. [9] On June 17, 2009, the Armoyans’ younger daughter had surgery at the IWK Children’s Hospital in Halifax. Mr. and Ms. Armoyan accompanied their daughter to Halifax for the surgery and for her six week post-surgical recovery period. In August 2009, after the recovery period, the family left for a two week cruise to Europe. After the cruise, the family returned directly to their Florida home for the 2009-10 school year. [10] In September 2009, the Armoyans’ daughters returned to public school in Boca Raton. Their son enrolled in Upper Canada College in Toronto. Mr. and Ms. Armoyan continued to live in the Florida home with their daughters. [11] On October 20, 2009, Ms. Armoyan filed a Petition for the Dissolution of Marriage in the 15th Judicial Circuit Court for Palm Beach County, Florida. [12] According to Mr. Armoyan’s affidavit, on October 22, 2009 at their Florida house, Ms. Armoyan served Mr. Armoyan with the divorce petition. Mr. Armoyan deposed that he was “very surprised”. Mr. Armoyan’s later Nova Scotia divorce petition says that cohabitation ceased on October 12, 2009. [13] On December 8, 2009, Mr. Armoyan returned to Nova Scotia, where he filed a Petition for Divorce in the Supreme Court of Nova Scotia (Family Division) on December 9, 2009. [14] By December 9, 2009 there were concurrent divorce proceedings in Florida, initiated by Ms. Armoyan, and Nova Scotia, initiated by Mr. Armoyan. [15] Thereafter, Ms. Armoyan has remained in Florida with her daughters, who continued their schooling in Florida. The Armoyans’ son has attended private school in Toronto where he has lived with his maternal grandparents, and returns to Florida to stay with his mother and sisters. The children have had little connection with Mr. Armoyan, who has withdrawn any parenting and custody claims, and virtually no connection to Nova Scotia. Ms. Armoyan has no employment, has attempted to further her education in Florida, and raises the children there as a single parent. She has no connection to Nova Scotia and no intent to return. Since December 2009, Mr. Armoyan has lived primarily in Halifax, but has travelled to the Middle East and elsewhere for business or personal reasons. [16] I will track the progress of the proceedings in Florida and Nova Scotia since the autumn of 2009. 2. The Florida Proceeding [17] The following commentary outlines, by topic, the salient aspects of the Florida litigation. I will just recite from the various Decisions that appear in the Appeal Books. This outline is not exhaustive and omits over a hundred rulings, many having been contested, by the Florida Circuit Court and District Court of Appeal between October 2009 and October 2012, related to this divorce. The Florida Circuit Court’s Order of September 5, 2012 (discussed below, para 77) noted (para 22) that there had been 722 pleadings to that date in addition to appeal pleadings. I will cross reference to show the connections in these labyrinthine proceedings. (a) The Writ Ne Exeat [18] On November 3, 2009, at Ms. Armoyan’s ex parte motion, the Circuit Court issued a writ of ne exeat. Mr. Armoyan was served in Florida. The writ restrained Mr. Armoyan from leaving Florida until arrangements were made to support his children. [19] The Circuit Court issued another Order, filed January 20, 2010, that dissolved the writ of ne exiat. The dissolution was effective as of early December, 2009, and Mr. Armoyan was permitted to leave Florida in early December. According to the recital in the dissolution Order, the writ was dissolved after considering the evidence presented, including but not limited to, the Husband’s representation that he will abide by the Orders of this Court, The transcript of Mr. Armoyan’s testimony before Judge Stern on December 2, 2009 says: Q. You claim under oath that you’re going to follow this Court’s order? A. Yes. Q. And that you have ties to Florida so that the Court shouldn’t concern itself by you not coming back? A. That’s correct. The dissolution Order directed that Mr. Armoyan deposit $150,000 to Ms. Armoyan’s account, toward support, and provided The Husband must abide by all Orders of this Court, past and future, until otherwise ordered. (b) Mr. Armoyan’s Hague Convention Petition [20] Mr. Armoyan petitioned the United States District Court, Southern District of Florida, for a ruling that his daughters be returned to Canada. His application was based on the Hague Convention. Before the hearing of that application, Mr. Armoyan obtained from the Circuit Court an order that there be no custody ruling on the divorce proceeding, for any of the three children, until the Hague Convention matter was determined. The nature of the Hague Convention proceeding required a judge to issue a Report and Recommendation to the State of Florida. Circuit Court Judge Turnoff conducted a hearing in November 2010, and heard testimony from Mr. and Ms. Armoyan and their two daughters. He issued a Report and Recommendation on December 23, 2010. [21] Judge Turnoff’s Report stated that the children were habitually resident in Florida, and recommended that Mr. Armoyan’s Hague Convention motion be dismissed. Where Judge Turnoff’s Report gives citations to his transcript or record, I will insert “[c.o.]” for “citations omitted”. [22] The Report characterized Mr. Armoyan’s Hague Convention petition as follows: An evidentiary hearing on the Amended Petition [c.o.] took place before the undersigned on Wednesday, November 24, 2010. ... Petitioner’s [Mr. Armoyan’s] filings herein amount to nothing more than a carefully orchestrated scheme to overwhelm Respondent financially by forcing her to defend herself in numerous causes of action filed by Petitioner in multiple jurisdictions. As part of his relentless pursuit, Petitioner, through his Amended Petition [c.o.], which was filed under seal and submitted under oath [Judge Turnoff’s emphasis], managed to manipulate this Court into taking immediate action. Misrepresentations to the Court In furtherance of his scheme, Petitioner represented to this Court that his children were being illegally retained in this District by Respondent. [c.o.]. Specifically, Petitioner urged this Court that: (1) immediate court action was required, (2) that there was a real danger that Respondent would conceal the children and/or take them out of this jurisdiction, (3) that irreparable harm to the children would result, (4) that emergency treatment of this matter was warranted, and that (4) ex parte relief was necessary. [c.o.] (“the entry of an emergent order preventing her [from concealing the children outside the jurisdiction] is appropriate and necessary as a provisional remedy”). Petitioner went so far as requesting that this Court “issue a Warrant of Arrest” for Respondent. [c.o.]. The Court, now having had the benefit of hearing testimony, and making credibility determinations, finds that neither of the above were true. The catalyst for this action was most certainly not the return of his children to Canada. Rather, its sole purpose was to harass, intimidate, and quite frankly, bully the Respondent - while at the same time conveniently continuing to delay the underlying dissolution of marriage proceedings pending in the Fifteenth Judicial Circuit in Palm Beach County, Florida, to wit: Case No: 05-2009 DR 012086 xxxx SB (“Florida divorce action”). In fact, the instant proceedings were cited and used by Petitioner in order to secure himself an emergency stay of the Florida divorce action. [c.o.] Since the filing of the Florida divorce action, Petitioner has relentlessly used his vast means and resources to initiate litigation geared solely towards delaying a determination as to support payments, and forcing Respondent to defend herself with limited means. ... This Court shall neither condone nor assist Petitioner in these endeavours. It is high time that the underlying custody and support issues pending in the Florida divorce action move forward on the merits. Consistent with the above, it is this Court’s finding that the Amended Petition [c.o.] was frivolous and vexatious from its inception. ... [23] Based on the testimony of Mr. and Ms. Armoyan and their two daughters, Judge Turnoff’s Report said the following about the family’s place of “residence”: Petitioner’s original visa was valid from July 1, 2008 to June 30, 2009. [c.o.] He and his family entered the United States sometime in August 2008. [c.o.] Upon their arrival, the family secured housing in Boca Raton, Florida. [c.o.] They remained in Florida until the summer of 2009, when they briefly returned to Canada. The family, all except for their son, J.A., returned to Florida at the end of the summer in August 2009. In the meantime, Petitioner continued to travel to and from Canada from August through October 2009. [c.o.] ... Petitioner claims that on or about November 18, 2009, less than one month after Respondent filed for divorce, he learned that Armco had abruptly terminated his employment and revoked his visa, and consequently, those of Respondent and the children. ... ... Petitioner suggests that he was a mere employee, subject to the decisions of his employer; an employee that relocated to Florida solely at the behest of his employer. Petitioner also asserts that he was surprised to learn of his termination and equally surprised to discover that Armco had “revoked” and/or “cancelled” his visa [c.o.] Nothing could be further from the truth. There is no doubt, at least in this Court’s mind, that the termination of Petitioner’s employment, and subsequent revocation of his visa, was no coincidence. Upon questioning by the Court, Petitioner conceded that his family has various ownership interests and connections to Armco. [c.o.] Specifically, his sister-in-law owns the “controlling part” of Armco’s parent company, and his brother is the chairman of the board. [c.o.] Upon further questioning by the Court, Petitioner also admitted that he personally owns fifty percent of Armco’s parent or “mother” company, i.e., “Gevox.” ... All of this is consistent with Respondents’ testimony that Petitioner is “pretending” that he does not own Armco. [c.o.]. In this Court’s view, for all intents and purposes, Petitioner and Armco are one and the same. Indeed, the evidence suggests that Petitioner caused Armco to transfer him to Florida when he was attempting to save his marriage, which by his own admission was in trouble in 2008. To illustrate, Armco’s May 9, 2008 letter indicates that Petitioner’s employment would commence on July 8, 2008, and was expected to require residency in the United States for up to three years. [c.o.]. When things did not go as planned - i.e., Respondent filed for divorce in October 2009 - Petitioner, almost like a puppet master, caused Armco to terminate his employment and revoke his visas, and by extension, those of his family. Petitioner’s sudden and immediate “termination” on November 18, 2009 came almost one month to the day after Petitioner was served with divorce papers on October 22, 2009. [c.o.]. All this, notwithstanding Petitioner’s prior claim, and Armco’s written confirmation on May 20, 2009, that his original employment had been “renewed” for one more year, and that he had been approved for a second visa for the period of July 1, 2009 through June 30, 2010. [c.o.]. In this Court’s view, these seemingly coincidental events are consistent with a well thought out “win-at-all-costs” plan to force Respondent to return to Canada after Petitioner, vis-a-vis Armco, caused her visa and that of the children to be revoked. Petitioner relentlessly followed through on his plan without regard for the harm it would cause to his children by: 1) leaving them with no legal immigration status in the United States, and 2) the possibility of having their mother arrested by the United States Marshals upon the filing of this action. ... In order to establish a prima facie case under the Convention, Petitioner must establish that: (1) the habitual residence of the child immediately [Judge Turnoff’s italics] before the date of the alleged wrongful removal or retention was in the country to which return is sought, ... ... Applying the law to the facts of this case, the undersigned finds that Petitioner, in addition to the fabrications and misrepresentations noted above, has failed to set forth a prima facie case, as Canada was not the children’s habitual residence immediately before the time of the alleged removal. Habitual Residence ... Petitioner specifically contends that the habitual residence of the family, including the children, was in Halifax, Nova Scotia [c.o.] The evidence suggests otherwise. While the Convention does not specifically define the term “habitual residence” it has come to mean the place where the child has lived for some period of time for a settled purpose. ... Here, both children testified that they were last in Halifax in the summer of 2009 when C.A. underwent back surgery, and that prior to that they had not lived there since 2006. [c.o.] The testimony indicates that the parties actually lived in Toronto, Canada from September 2007 through July 2008. In Toronto, the family lived in a rented home pursuant to a ten month lease [c.o.], and the children attended school there. [c.o.]. They had initially relocated to Toronto, because Respondent and the children hated living in Halifax. [c.o.] In fact, the children so despised Halifax that prior to leaving for Toronto, they “smashed all [their] toys,” and “[wrote] on the windows” because they “knew [they] were never [going] back” [c.o.]. Clearly, in their mind, they were not returning. Eventually, the family left Toronto because Petitioner hated it there. [c.o.] (“[we left Toronto] because my mom hated Halifax and my dad hated Toronto.”) . As part of their move from Toronto, they sold their furniture. [c.o.]. Upon leaving Toronto, the family returned briefly to Halifax, where they spent the summer of 2008. [c.o.]. At the end of the summer, they relocated to Florida. [c.o.] All evidence suggests that Petitioner consented to the move in an effort to save his marriage. Indeed, the entire family was trying to find a place where they could all be happy. They ultimately settled on Boca Raton, Florida because it was the place “they all loved” and where they “were going to stay”. [c.o.] In furtherance of same, Petitioner sought to develop business in Florida and establish a life here. When they first arrived in Florida, the family, including all three of their children, resided at a condominium owned by Petitioner’s mother. [c.o.]. Later, around August-September 2008, the family secured a rental property at 800 N.E. Harbour Drive in Boca Raton, Florida. [c.o.]. The official period of the lease was from August 29, 2008 - June 28-29, 2009. [c.o.]. However, the evidence suggests that the parties continued to rent the property on a month-to-month basis well after the end of the lease. [c.o.]. In fact, Respondent and the children continued to reside at the 800 N.E. Harbour Drive address until Petitioner, on his own, notified the landlady that they would not be living there anymore. [c.o.]. ... It is also important to note that all of the Armoyan children attended school in Palm Beach County, Florida during the 2008-2009 school year. [c.o.]. Petitioner himself admits that during September 2008 through May 2009, with the exception of school observed holidays, the children remained in Florida. [c.o.]. The following school year, J.A. expressed his desire to return to boarding school in Toronto. [c.o.]. However, C.A. and V.A. remained in Florida, and attended private schools in Boca Raton. [c.o.]. Petitioner admits that they attended school in Boca Raton with his permission, and that he paid the tuition for same. [c.o.] To this day, C.A. and V.A. continue to attend school in Boca Raton. However, they are now in public schools, because Respondent cannot afford private school tuition. Are the Children Settled in Florida Having determined that the children’s habitual residence was relocated to Florida, the undersigned shall address the issue of whether the children are settled or acclimated here. ... [Judge Turnoff’s review of the evidence is omitted] Consistent with the above, it is the finding of this Court that these children are acclimatized and doing well in Florida. They have both adjusted to their schools, made friends and become involved in both school and extracurricular activities. [24] The Report says, of the daughters’ intentions: As noted above, C.A. is twelve and V.A. is fourteen. Both girls are quite bright, mature, and very articulate. Each was well composed, testified calmly, and readily answered the questions posed to them. In the Court’s opinion, their age and level of maturity warrant the consideration of their views. Here, both girls object to being returned to Canada. They have both testified that they enjoy their friends, school and extracurricular activities in Florida. In other words, they have expressed a hugh [sic] sense of belonging. A sense that they are building their lives here; whereas in Halifax they felt as if they had no life. [c.o.] In this connection, when they speak about Halifax they describe a feeling of not belonging. ... In this Court’s view, both girls have made it clear that they do not wish to return to Halifax. Rather, their wish is to remain in Florida with Respondent [Ms. Armoyan]. [c.o.]. [25] Judge Turnoff’s Report concluded: V. Conclusion Consistent with the above findings, the Court, having considered the stated wishes of the children, finds that Respondent has established this exception by a preponderance of the evidence. The children should remain in Florida. ... The Report recommended that Mr. Armoyan’s motion be dismissed and that: the Court enter an Order advising the State of Florida Court in the divorce proceedings that it may proceed with the matters pending before it. [26] The Report was for the review of the District Court. On September 28, 2012, after the review, the United States District Court, Southern District of Florida dismissed Mr. Armoyan’s Petition to return the children to Canada. [see para 38 of Circuit Court’s Divorce Judgment of October 26, 2012, below, para 79] (c) Mr. Armoyan’s Disqualification Motion [27] Before their separation, Ms. Armoyan had cloned information from the hard drive of Mr. Armoyan’s laptop computer. The information apparently disclosed assets of Mr. Armoyan or his companies. Ms. Armoyan showed this information to her Florida attorney and accountant. Mr. Armoyan applied in the Florida Court to disqualify Ms. Armoyan’s Florida divorce counsel and accountant, on the basis that they had seen privileged information. The Florida Circuit Court established a process, involving review of the allegedly privileged information by a court appointed Special Master, whereby the information could be reviewed to determine whether a privilege had been violated. [28] Judge Stern of the Florida Circuit Court heard the matter. On December 15, 2010, Judge Stern issued a ruling with a stinging rejection of Mr. Armoyan’s position (quoted below, para 31). In July 2011, the Fourth District Court of Appeal allowed Mr. Armoyan’s appeal on a procedural ground, to allow Mr. Armoyan to offer additional evidence, and remitted the disqualification issue for a rehearing before the Circuit Court. [29] On August 1, 2011, the Circuit Court scheduled January 4, 2012 for the rehearing of Mr. Armoyan’s disqualification application. Mr. Armoyan was to testify on that date. [30] On January 4, 2012, Mr. Armoyan did not appear in Circuit Court, and had not made other arrangements for his testimony. His counsel requested an adjournment, which the Court denied. On January 11, 2012, the Florida Circuit Court issued an Order that dismissed Mr. Armoyan’s motions to disqualify Ms. Armoyan’s counsel and accountant. That ended Mr. Armoyan’s claim to disqualify Ms. Armoyan’s attorney and accountant. [31] Judge Martz’ eventual Divorce Judgment of October 26, 2012 (para 30, quoted below in para 79) “reincorporates” Judge Stern’s findings from the ruling of December 15, 2010. Those, now reincorporated, findings in Judge Stern’s December 15, 2010 Order included: 1. The Husband claims that he had maintained a laptop computer (which is owned by ARMCO CAPITAL, INC., which in turn is owned by the Respondent/Husband and his brother) containing information, including communications, for business purposes, all unconnected with this divorce. The Wife claims that the said computer had also been used to send and receive privileged communications between the Husband and his attorneys, and also attorney work product involving matters and information pertinent to this case, including but not limited to the drafting and negotiating of the parties’ postnuptial agreement which is sought to be used by the Husband in support of his argument that this Court does not have jurisdiction over the parties or their marriage. It is undisputed that the accountant, Robert W. Zucker, has possession of, and has seen, many if not all of the allegedly privileged documents. The Wife’s counsel is alleged to have seen the documents, and in a September 16, 2010 letter to Husband’s counsel indicating which documents he seeks to use (identifying each by Bates stamp number), counsel implicitly admits knowing their content. 2. The Husband maintains that the Wife’s counsel, by virtue of his having reviewed the documents, and by virtue of “his” CPA having reviewed the documents, the Wife has an unfair informational advantage or tactical advantage through the disclosure of the privileged information in those documents. The Husband maintains that the Wife, in taking possession of the Husband’s laptop, and by turning it over to her professionals involved in this case, is guilty of an abuse of the judicial process. The Husband contends that only by disqualification of the Wife’s counsel and CPA can the damage be undone. ... 6. Where privilege is asserted in a Privilege Log, an in camera inspection must be held before the court can order documents to be produced. Snyder v. Value Rent-a-Car, 736 So.2d 780, 782 (Fla. 4th DCA 1999). ... The Court’s in camera inspection of the documents has revealed that a number of documents and communications contained on the laptop’s hard drive clearly are relevant to crucial issues herein, issues raised by the Husband, who thereafter sought to conceal evidence potentially harmful to him on these very issues. ... 8. Section 90.502, Fla.Stats., is the section of Florida’s Evidence code dealing with the attorney-client privilege. It provides in pertinent part as follows: “90.502. Lawyer-client privilege ... (4) There is no lawyer-client privilege under this section when: (a) The services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew was a crime or fraud. ... (c) A communication is relevant to an issue of breach of duty by the lawyer to the client or by the client to the lawyer, arising from the lawyer-client relationship. [Judge Stern’s italics]” 9. Any privilege attaching to the Respondent’s conversations with his counsel of record herein have been waived, insofar as they relate to the issue of his concealment from the Wife of (a) the nature and extent of his assets and income at the time of negotiating and executing the postnuptial agreement, and (b) the facts surrounding his residency, at least insofar as it involves his animus manendi in Florida. As to (a), Respondent clearly was causing untruths to be made to this Court. This was a fraud on the Court and on Petitioner and her attorney, as well as on Respondent/Husband’s own attorneys as well. As to (c), this Court assumes that Respondent’s counsel of record herein was unaware that she was unwittingly repeating to this Court falsehoods fed to her by her client, the Respondent. ... Respondent’s use of his counsel in this manner constitutes a breach of duty by the client to the lawyer, and obviates the privilege with respect to anything the Respondent has told that counsel with respect to the contents of the material at issue, and also regarding the issues to which they relate. ... 10. Similarly, if Respondent withheld from his Canadian attorney, Michael Ryan, who drafted and helped Respondent to negotiate his postnuptial agreement, the full scope of Respondent’s assets and income, then Respondent would have been using his unwitting counsel as a conduit to defraud Petitioner and her then counsel, Bryan [sic - Brian] Church, and, ipso facto, would have been breaching his duty to his own counsel. Thus, there is no privilege as to any communications between Respondent and attorney Ryan which relate to his assets, net worth and income, and also to his residency. ... 13. In the case at bar, respondent/Husband, through his apparently unsuspecting attorney of record, Melinda Gamot, misrepresented to this Court that the hard drive in question contained only [Judge Stern’s italics] corporate material, much of which involved corporate trade secrets. There was a categorical assertion by Ms. Gamot that “there is no personal information relative to this case. It’s all proprietary information pertaining to Armco.” [c.o.] When asked if she personally had examined the entire hard drive, she candidly stated that she has no personal knowledge of what is on the hard drive, and that she had relied on Affidavits filed in the Court in Nova Scotia, where an action was instituted in an unsuccessful attempt to create an alternate forum to litigate issues involved in this case; that Court promptly deferred to this Court as the appropriate forum. Two and a half months later, said counsel represented that “[w]e don’t think there’s any marital asset records on that hard drive that she cloned.” ... 14. ... The pretense that the computer contained no data of a personal nature clearly was intended to create the false perception that immediate return of all material on the hard drive, and copies thereof, could in no way deprive the Wife of relevant material helpful to her case. 15. ... Through his own attorney and through his corporation’s attorney, the Husband conducted a full-court press, both here and in the Nova Scotia Court, to keep the those [sic] documents from being used by Wife’s counsel even though it was now a matter of record that the Special Master had identified documents of relevance herein, contradicting those counsels’ prior repeated assurances to this Court that no personal information was in the subject material. 16. Now that the cat is out of the bag and the existence of relevant material on the hard drive is manifest, the Husband, having failed to thwart the administration of justice by the use of deception on this Court, the Fourth District Court of Appeal and the Nova Scotia Court, seeks to disqualify the Wife’s attorney and CPA in a new attempt to derail this case. This Court will not reward the Husband’s attempts in this and two other Courts, to thwart the discovery of the truth and to prevent the resolution, on an informed basis, of all the issues between the parties. 17. ... In reviewing documents submitted under seal for examination, the Court notes that the documents certainly contain material relevant to the Petitioner/Wife’s contention that she was not apprised of the full extent of her Husband’s financial situation (and even suggesting that the Respondent/Husband had purposely withheld from his Canadian attorney (William “Mick” Ryan) who assisted him in negotiating the postnuptial agreement involved here), and relevant also to the issue of the parties’ residence and intentions with respect thereto. ... 18. ... The Husband himself, in attempting to convince the Court to prohibit opposing counsel from seeing the material, actually waived the privilege as to his attorney-client communications contained on the hard drive, by falsely declaring and repeatedly declaring that no such privileged documents exist on it. Such declarations were made more than once, over a significant period of time, before this Court and the appellate court. The Husband had gambled that his fraudulent statements would induce this Court to do his bidding; he lost. ... 21. The Respondent, through his attorney and through his company’s attorney, intentionally and repeatedly misrepresented the nature of the contents of the hard drive as being limited solely to trade secret information of the company, and expressly asserted to both courts that there was nothing on the hard drive of any import or relevance to this case and the issues of concealment of assets and of the parties’ residency. The Respondent’s willfulness in causing these misrepresentations cannot be denied. ... 23. This Court invokes a principle of long-standing in this State, a principle which state and federal courts throughout the nation have invoked in declining to permit subterfuge by one party to prevail over the good faith of the other party: “The trial of a lawsuit should be a sincere effort to arrive at the truth. It is no longer a game of chess in which technique of the maneuver captures the prize.” [case citation omitted]. Ruling The Husband’s Verified Motion to Disqualify Wife’s Counsel Joel M. Weissman, P.A. and The Husband’s Verified Motion to Disqualify Robert W. Zucker, P.A./Zucker Forensics should be, and the same both hereby are, DENIED. (d) The Stay [32] On December 22, 2010, Mr. Armoyan applied to the Florida Circuit Court for a stay of the Florida divorce proceeding. The Court heard the motion on March 3, 2011. On April 6, 2011, the Florida Circuit Court stayed the Florida divorce proceeding until the determination of Mr. Armoyan’s motion to disqualify Ms. Armoyan’s counsel and accountant. The Stay allowed an exception, that Ms. Armoyan could seek interim maintenance for herself and the children. [33] The Stay ended on January 11, 2012, when the Florida Circuit Court issued the order that finally dismissed Mr. Armoyan’s motion to disqualify Ms. Armoyan’s counsel and accountant (above, para 30). On January 4, 2012, Mr. Armoyan’s counsel had requested that the Stay be continued, but the Florida Circuit Court denied that request. (e) Mr. Armoyan’s Financial Disclosure [34] Financial disclosure from Mr. Armoyan was a struggle from the outset of the Florida divorce proceeding. [35] Immediately after Ms. Armoyan’s petition was filed, a Circuit Court Judge issued an Order of October 20, 2009: Pursuant to §61.21(4), (5) and (9), Florida Statutes §61.30(1)(a), Florida Statutes and Florida Family Law Rules of Procedures 12.285(b) (2), (d), (j), it is ORDERED AND ADJUDGED that: ... 5. Each party shall file and serve a completed, notarized Financial Affidavit in substantial conformity with Florida Family Law Rules of Procedure Form 12.902(b), if the party’s gross income is less than $50,000.00 or Florida Family Law Rules of Procedure Form 12.902(c), if the party’s gross income is $50,000.00 or greater. 6. The parties shall file and serve a completed Child Support Guidelines Worksheet in substantial conformity with Florida Family Law Rules of Procedure Form 12.902(e). 7. The parties cannot waive the requirement that Financial Affidavits and a Child Support Guidelines Worksheet be filed and served. No Final Judgment determining child custody and visitation may be entered absent determination of child support, and child support may not be determined without the information required to be disclosed in the Financial Affidavits and Child Support Guidelines Worksheet. 8. The Financial Affidavits and Child Support Guidelines Worksheet must be served within forty (45) [sic] days of service of the petition on Respondent but, in any event, at least five (5) days before Court ordered mediation, absent agreement of the parties in writing or Court order. [36] On December 17, 2009, after the expiry of the time period for Mr. Armoyan’s Financial Affidavit mentioned in the October 20, 2009 Order, the Circuit Court issued an Order, on Ms. Armoyan’s ex parte motion, to compel Mr. Armoyan’s financial disclosure: 2. Pursuant to Fifteenth Judicial Circuit Administrative Order No. 5.202-5/09 the Husband shall provide his completed Family Law Financial Affidavit and compliance with mandatory disclosure to the Wife through her counsel within ten (10) days from the date of this Order. [37] On January 11, 2010, the Circuit Court issued an “Agreed Order” that vacated the previous Order to Compel Mr. Armoyan’s Financial Disclosure and, instead, directed that Ms. Armoyan’s motion to compel disclosure be heard before a judge. [38] On January 21, 2010, the Circuit Court, after having heard argument, ordered: 1. Wife’s Motion to Compel Response to Request to Produce and Answers to Standard Family Law Interrogatories be and same is hereby GRANTED. 2. The Husband shall provide his full and complete Response to Wife’s First Request to Produce and his Answers to Standard Family Law Interrogatories to the Office of Joel M. Weissman, P.A. on or before February 22, 2010. [39] On November 10, 2009, Mr. Armoyan had applied in the Florida Court to challenge the Florida Court’s jurisdiction to hear the divorce and for a ruling that the Florida Court was not the forum conveniens. Accordingly, on February 19, 2010, the Circuit Court issued an Order that (1) scheduled March 9, 2010 for the hearing of the Jurisdiction/forum non conveniens issue, and (2) extended the date for Mr. Armoyan’s “compliance with Mandatory Disclosure” to March 19, 2010. The Order justified the extension as “giving the Court time to rule on the Husband’s pending Motion to Dismiss for Lack of Jurisdiction ahead of the return date on the referenced Orders”. [40] Logistics and witness unavailability delayed the hearing of the jurisdictional/forum non conveniens issue. The matter was not ready for hearing on March 9, 2010, and was adjourned. On March 24, 2010, the Circuit Court issued an Order stating: 2. The hearing on the issue of jurisdiction will be decided soon, and there would be no prejudice to the Wife in the Court’s staying financial discovery for a very short time. The Court did not fix a new date for Mr. Armoyan’s disclosure but, instead ordered that Mr. Armoyan provide the disclosure “within ten (10) days of the date of the Court’s written Order ruling that this Court has jurisdiction”. [41] On June 7, 2011, the Circuit Court issued an Order that deferred Florida’s consideration of the forum non conveniens issue until after the consideration of forum non conveniens by the Family Division of the Supreme Court of Nova Scotia. The Florida Court was under the impression that the Nova Scotia Court would consider that matter within several weeks, in June 2011. The Florida Court’s order said: A. This Court is going to wait until after the June hearings in Nova Scotia to make its decision on forum non conveniens. [42] As it turned out, the Nova Scotia Court did not deal with the forum non conveniens in June 2011. Nova Scotia’s Court did not issue a ruling on that matter until September 2012 (discussed below, paras 111-15, 118-21). [43] On September 28, 2011, the Florida Circuit Court issued an Order that scheduled the hearing of the jurisdictional/forum non conveniens issue after the rehearing of Mr. Armoyan’s motion to disqualify Ms. Armoyan’s attorney and accountant. That disqualification rehearing had been scheduled for January 4, 2012 (above, para 29). [44] As I will discuss (para 75), the Florida Court did not address the jurisdictional/forum non conveniens matter until April 4, 2012. So the time limit (10 days after the jurisdictional ruling) for Mr. Armoyan’s financial disclosure, prescribed in the Circuit Court’s Order of March 24, 2010, did not expire until April 14, 2012. [45] As I will also discuss (paras 57-67), by February 2012, Mr. Armoyan had defaulted on his court ordered interim support for Ms. Armoyan and his children, his Florida counsel had withdrawn, and Mr. Armoyan had jettisoned his responsibility under Florida law. This dispatched any issue of disclosure. [46] As a result, throughout the Florida divorce litigation, Mr. Armoyan managed to escape the full financial disclosure that is prescribed by Florida’s divorce laws. (f) Mr. Armoyan’s Stipulation to Avoid Disclosure [47] As noted above (paras 32-33), the Florida divorce proceedings had been stayed until the determination of Mr. Armoyan’s claim that Ms. Armoyan’s counsel and accountant were disqualified. That matter was not determined until January 2012. But an exception to the stay was that Ms. Armoyan could seek interim maintenance, termed by the Florida orders as “temporary” or “separate” maintenance. The calculation of interim maintenance would be assisted by financial disclosure from Mr. Armoyan, which Mr. Armoyan had resisted. [48] On April 6, 2011, Ms. Armoyan requested an Order that Mr. Armoyan provide financial disclosure to enable the calculation of interim maintenance. On April 15, 2011, the Circuit Court issued an order that required Mr. Armoyan to either (1) provide that disclosure or (2) file a stipulation that he could pay any reasonable award of maintenance and that the stipulation would be available for contempt proceedings to enforce the award, should he then fail to pay. [49] Specifically, the Circuit Court’s Order of April 15, 2011 states: THIS MATTER was before the Court April 6, 2011 on the Wife’s Motion to Compel Husband’s compliance with financial disclosure. After hearing argument of counsel and being fully advised, it is hereby ORDERED AND ADJUDGED as follows: For purposes of financial disclosure pertaining to the Wife’s claim for temporary maintenance under Count II of her Amended Petition, i.e. FS § 61.09, the Husband is to provide a complete financial affidavit by April 13, 2011, unless by the time he submits a verified stipulation signed by him, that he agrees for purposes of the upcoming temporary support and maintenance hearing, and for purposes of any motion for contempt to enforce the orders that arise out of that hearing, should he not comply that he has the ability to pay whatever amounts the Court deems reasonable and necessary. [50] Mr. Armoyan chose to give the stipulation instead of disclosure. The later Orders of the Florida Circuit Court filed January 24, 2012 and February 14, 2012 (that I will discuss below, paras 58, 62) recite the circumstances of Mr. Armoyan’s stipulation. [51] The Circuit Court’s Order filed January 24, 2012 says: 1. This Court entered an order on the Wife’s Motion to Compel the Husband’s Compliance with Discovery, requiring the Husband to either comply with financial disclosure by April 13, 2011, or to stipulate that he has the ability to pay an amount that this Court deemed just and necessary as to the Wife’s claim for temporary support and attorney’s fees under Florida Statute § 61.09. (DE 409). 2. On April 11, 2011, the Husband stipulated that he has the ability to pay any amount this Court deemed reasonable and necessary, so as to avoid the requirement to comply with financial disclosure (DE 403), as requested by the Wife. Further, the Husband agreed that said stipulation would address (for the purposes of contempt) his ability to pay, should he fail to comply with the orders regard the same. (DE 403). [52] The Circuit Court’s Order of February 14, 2012: 1. In advance of the hearing regarding the Wife’s Application for F.S. § 61.09 Separate Maintenance, this Court permitted the Husband to file a signed written stipulation that he has the ability to pay any reasonable award of support and/or attorney’s fees, in lieu of providing mandatory disclosure. (DE 409). ... 2. On April 11, 2011, the Husband filed a stipulation stating that he has the ability to pay any reasonable and necessary award of temporary support and maintenance, and that said stipulation would be applicable for the purposes of contempt, regarding the orders as to the same. (DE 403) [53] The Circuit Court’s Order of September 5, 2012 (below, para 77, recital C), quotes Mr. Armoyan’s stipulation: I stipulate that I have the ability to pay the amounts this Court deems reasonable and necessary for temporary maintenance and support and, for purposes of contempt, should I not comply with the order that arises out of that hearing on the Wife’s temporary maintenance and support. (g) Interim Support Order [54] On August 11, 2011 the Florida Circuit Court issued an Order (“Interim Support Order”) that Mr. Armoyan pay to Ms. Armoyan support for Ms. Armoyan and the children. Mr. Armoyan was represented by counsel. The Order said: ... After hearing the evidence and argument of counsel and being fully advised, it is hereby ORDERED AND ADJUDGED as follows: 1. The Wife is entitled to separate maintenance from October 20, 2009 through April 30, 2011 as follows: a. $368,596.77, representing $20,000 per month, prorated and $25,000 per month prorated from April 22 to April 30, 2011, for undifferentiated maintenance and support for the Wife and minor children. The court has not yet addressed tax consequences of these funds. b. $10,059, representing the children’s medical expense reimbursement. c. $52,946, representing Jonathan’s boarding school tuition paid by the Wife. d. $17,349, representing tuition for the parties’ daughters to attend St. Andrews. The Husband believes that tuition is refundable as the children did not complete the school year. The Court hereby assigns to the Husband all rights to negotiate with the school and to collect any and all refunds due and owing. The Wife shall fully cooperate and sign all forms as required for the Husband to have the authority to both negotiate with the school and to collect the refunds. e. The above sums total $448,951. f. The Husband is entitled to a credit for payments made directly to the Wife or children for their support. The Husband claims the amount of that credit $151,478. The parties shall confer and if they cannot reach agreement then they shall return to Court for further ruling. g. The Court is not crediting the amount set forth in subparagraph e above with the $550,000 paid to the Wife in three lump sum payments of $150,000, $250,000 and $150,000, for the reasons set forth on the record. h. The amount of $297,473, representing the difference between the amount due in subparagraph e and the amount of credits claimed by the Husband shall be paid by the Husband, from any source he chooses to the JM Weissman trust acct, by August 20, 2011. 2. Going forward and effective April 22, 2011, the Husband shall pay the Wife $25,000 per month as undifferentiated maintenance and support for the Wife and children. Payment shall be due on the first day of each month beginning, May 1, 2011. The Court acknowledges that the pro rata difference between the support due for April 2011, and the amount previously paid by the Husband, was made up and paid with his May 1, 2011 payment. 3. In addition, the Husband shall pay for all reasonable and necessary medical, dental, orthodontia, and drug prescriptions for the children not covered by health insurance. The Husband shall not be responsible for any of the above listed health expenses for the children for non-emergency care for which he has not given prior written consent, within ten days of being requested for consent, which consent shall not be unreasonably withheld. The Wife shall take all steps reasonably necessary to make arrangements for the Husband to pay the healthcare provider directly so that the Husband has clear access to the health related expenses and treatment records for the children. If there is a healthcare provider who refuses to take payment directly from the Husband, and should the Wife incur any out-of-pocket expenses, then the Husband shall reimburse her for those expenses within 30 days of presentation of the actual paid receipts, after the appropriate insurance credit. The Wife shall maintain and pay for the children’s Florida, USA health insurance, as the cost of that insurance has already been factored into her monthly interim support. (h) Costs Orders Against Mr. Armoyan [55] On September 1, 2011, the Florida Circuit Court issued an order that quantified Ms. Armoyan’s recoverable costs for the Interim Support proceeding. The Order required Mr. Armoyan to pay $75,000 to Mr. Joel Weissman, Ms. Armoyan’s attorney, and $50,000 to Mr. Robert Zucker, Ms. Armoyan’s forensic accountant, by September 10, 2011. [56] On January 24, 2012, the Circuit Court issued two Orders that quantified as $56,659 and $10,069 the attorney’s fees, or taxable costs in Canadian terms, that were payable by Mr. Armoyan to Ms. Armoyan pursuant to Orders of the Florida District Court of Appeal. These amounts resulted from appeals taken in 2011 to the District Court of Appeal. The Circuit Court’s Orders said: The Husband shall pay the Wife’s appellate attorney’s fees in the amount of $56,659.00 to the Joel M. Weissman, P.A. Trust Account within thirty (30) days of January 5, 2012. The Husband shall pay the Wife’s appellate attorney’s fees in the amount of $10,069.00 to the Joel Weissman, P.A. Trust Account within ten (10) days of January 5, 2012. (i) Mr. Armoyan’s Default Under the Interim Support and Costs Orders [57] Through January 2012, Mr. Armoyan paid prospective support ($25,000 monthly) ordered by article 2 of the Interim Support Order. That Order, article 1(h), had also required Mr. Armoyan to pay $297,473 in arrears of child and spousal support, owing for October 20, 2009 (the separation) to April 30, 2011. Mr. Armoyan did not pay the arrears, despite his stipulation of April 11, 2011. Neither did Mr. Armoyan make the financial disclosure that he avoided by giving the stipulation. Nor did Mr. Armoyan satisfy the costs (attorney’s fees and accountant’s fees) ordered on September 1, 2011. [58] The Florida Circuit Court began to address Mr. Armoyan’s default by an Order, filed January 24, 2012, entitled “Order on the Viability of the Husband’s Stipulation as to Ability to Pay as it Pertains to the Wife’s Contempt Applications”. Basically, the Court gave Mr. Armoyan the opportunity to show inability to pay, in which case he would be required to make the financial disclosure that the Court had waived in return for his stipulation of April 11, 2011 (above, paras 47-53). The Order of January 24, 2012 said: ... after hearing argument of counsel, and the Court being otherwise duly advised in the premises, it is thereupon ORDERED: ... [The Order recites Mr. Armoyan’s April 11, 2011 stipulation, the Interim Support Order of August 11, 2011 and the Costs Order of September 1, 2011] 5. The Wife has filed contempt applications, alleging that the Husband has failed to comply with the foregoing orders, which are scheduled to be heard by this Court on February 14, 2012. 6. The Court finds, that the Husband shall be held to the stipulation he agreed to, as it pertains to his ability to comply with the orders as stated, for the purposes of contempt. 7. Should the Court find that the Husband has not paid the sums due and owing to the Wife (as stated in the Wife’s contempt applications), the Husband may be held in contempt at that time, based upon the stipulation. 8. However, this Court finds (as addressed by the Husband’s objections) that the Husband’s stipulation cannot extend to the remedy of incarceration. And, the Court is required to conduct a hearing to determine a present finding as to the Husband’s ability to pay the amount required that may be a purge to contempt in part. 9. Should the Husband currently contend to assert a claim of the inability to comply with the foregoing orders as to the financial ability to pay the sums due, and claim as a defense to the Wife’s contempt applications said financial inability, the Husband is required to comply with all discovery requests of the Wife (See Docket Entries 68, 69, and 409), including the filing of a financial affidavit and the supporting documents as to the same, as it would be inequitable to limit the Wife’s remedies, on her contempt applications as to said issues. 10. As such, the Husband shall be required to advise this Court and the Wife in writing by filing such notice (within fifteen (15) days from January 5, 2012) whether he will assert an inability to pay as a defense to the Wife’s contempt applications as stated. If the Husband choses [sic] to claim a financial inability, then he shall comply with the Wife’s outstanding discovery. [59] Mr. Armoyan responded by ceasing to honour the Interim Support Order. Beginning with the amount due on February 1, 2012, he stopped paying even the ongoing $25,000 monthly that had been ordered by article 2 of the Interim Support Order, as blended prospective support for Ms. Armoyan and their children. (j) Florida’s Enforcement of the Interim Support and Costs Orders [60] Not surprisingly, Mr. Armoyan’s default ignited activity in Florida. [61] On February 14, 2012, each of Mr. Armoyan’s Florida counsel, Ms. Melinda Penney Gamot, and Jane Kreusler Walsh, and their law firms, moved for permission to withdraw as Mr. Armoyan’s counsel of record. The Circuit Court issued Orders that granted the motions and directed that future notice to Mr. Armoyan be “mailed to 6009 Quinpool Road, 10th Floor, Halifax, Nova Scotia, Canada B3K5J7”. On August 23, 2012, Mr. Armoyan testified that this was the address of his office where he picks up mail. Notices of subsequent proceedings before the Florida Court were addressed to Mr. Armoyan at that Halifax location. [62] Also on February 14, 2012, the Circuit Court issued an “Order Adjudicating the Husband Vrege Armoyan in Civil Contempt and Granting Other Relief” for each of the court-ordered amounts respecting which Mr. Armoyan was in default - i.e. the arrears of interim support through April 30, 2011 ($297,473) under the Interim Support Order, the February, 2012 interim support payment ($25,000) under the Interim Support Order, and Ms. Armoyan’s recoverable legal costs ($75,000 and $56,659, and $10,069) and accounting fees ($50,000) that Mr. Armoyan had been ordered to pay under the Orders that are described above. The Orders are similarly worded. I will quote the Order that relates to Mr. Armoyan’s default in the payment of the $25,000 due on February 1, 2012 for Ms. Armoyan and the children: ... the Court makes the following findings of fact: ... 10. The Court finds that the Husband has failed to comply with the Order Granting Wife’s Application for F.S. § 61.09 Separate Maintenance, as he has willfully failed to pay to the Wife $25,000.00, which was due February 1, 2012. 11. The husband has also willfully failed to provide any discovery, pursuant to the Order on the Viability of the Husband’s Stipulation. [i.e. the Order of January 23, 2012, quoted above] ... BASED UPON THE FOREGOING, it is thereupon ORDERED: A. The Husband be and hereby is found in willful contempt of this Court for failure to pay the sum of $25,000.00, plus interest at the rate of 4.75% for the period of February 1, 2012 through the date of payment (for a sum of $45.55, to date) for a sum due and owing, as of February 14, 2012, in the amount of $25,045.55 with further interest to accumulate at the statutory rate, per annum. B. The Husband had the ability to comply with the Orders of this Court and has willfully refused to do so. ... [63] Also on February 14, 2012, the Florida Circuit Court issued Writs of Bodily Attachment against Mr. Armoyan related to his violations of the Court’s Orders. [64] On February 22, 2012, the Circuit Court issued Orders of Commitment against Mr. Armoyan. The Orders are similarly worded for the several amounts owing. The Order for commitment based on his default in paying the February, 2012 support for Ms. Armoyan and his children says: 2. This Court finds that the Husband, VREGE ARMOYAN has the present ability to pay the separate maintenance support as stated in this order and has willfully refused to do so. 3. Husband, VREGE ARMOYAN shall be incarcerated forthwith in the Palm Beach County Jail for a period of no less than sixty (60) days. However, Husband may purge this commitment by the payment of $25,045.55 to Lisa Armoyan. [65] On February 29, 2012, the Circuit Court issued a Writ of Ne Exeat against Mr. Armoyan. The Writ cited Mr. Armoyan’s “[f]ailure to pay court ordered support”, “[f]ailure to pay court ordered attorney’s fees and costs” and “[f]ailure to comply with discovery orders, or in the alternative to comply with orders to make payment”. The Writ said: 2. The Husband, Vrege Armoyan, is hereby enjoined and restrained from removing himself from the State of Florida until further Order of this Court. 3. All law enforcement agencies are requested to assist this Court in effectuating this Order forthwith, including, but not limited to, the detention of the Husband, Vrege Armoyan, if necessary, should he attempt to remove himself from the jurisdiction of the State of Florida without further Order of this Court. [66] On March 6, 2012, the Circuit Court issued Execution Orders against the property of Mr. Armoyan to satisfy the judgements. [67] The Interim Support Order of August 11, 2011 (above, para 54) had ordered Mr. Armoyan to pay $25,000 monthly as blended support for Ms. Armoyan and the children. After Mr. Armoyan defaulted in his monthly interim support payment obligations on February 1, 2012, for enforcement purposes it became necessary that the spousal and child support be separately delineated. On April 19, 2012, the Florida Circuit Court issued an Order that allocated the $25,000 as $10,000 monthly spousal support and $15,000 monthly child support for the Armoyans’ two daughters. The Order said: The Court entered an Order Granting Wife’s Application for F.S. § 61.09 Separate Maintenance, dated August 11, 2011 retroactive from October 20, 2009 with the stipulation that the Husband had the ability to pay, as he agreed that he desired not to file financial information disputing any claims of inability to pay. The Court adopted the Husband’s stipulation, and continues to adopt the Husband’s stipulation. The Wife has requested this Court to delineate between alimony and child support for enforcement purposes as to the amounts the Court has addressed in its Order Granting Wife’s Application for F.S. § 61.09 Separate Maintenance dated August 11, 2011. The Court finds that based upon the evidence, it is thereupon, ORDERED: ... 2. The alimony to the Wife was and is $10,000.00 per month as of October 20, 2009. ... 3. The child support for children, Victoria Armoyan and Christina Armoyan (Jonathan Armoyan was not addressed by the Court at the hearing on separate maintenance) is $15,000.00 per month as of October 20, 2009. ... (k) Florida Court’s Consideration of Anti-Suit Injunction, Jurisdiction and Forum Non Conveniens [68] On November 10, 2009, Mr. Armoyan applied in the Florida Court to challenge that Court’s jurisdiction and to contend that the Florida Court was not the convenient forum. Ms. Armoyan, for her part, sought an injunction from the Florida Court to restrain Mr. Armoyan from proceeding with the divorce proceedings in Nova Scotia. The jurisdictional issues had been scheduled for hearing in September 2010. But that court time was exhausted by other disputed issues. According to an “Agreed Order” of September 8, 2010, the jurisdictional issues were re-scheduled for hearing on November 4 and 5, 2010. As it unfolded, the matter still was not ready for hearing on the November dates. On April 6, 2011 the Florida Circuit Court issued an Order stating that the anti-suit injunction and related issues would be addressed at a hearing on April 21, 2011. [69] After hearing counsel, on June 7, 2011 the Florida Circuit Court issued an Order. The Order deferred consideration of the anti-suit injunction and the jurisdictional/forum non conveniens issues until after what the Florida Court understood to be an imminent ruling on forum non conveniens by the Nova Scotia Court. The Order of June 7, 2011 said: A. This Court is going to wait until after the June hearings in Nova Scotia to make its decision on forum non conveniens. That approach will end up with having the issue in one Court. This Court hopes the Canadian Court will address the issue, because that is the better of the two. B. This Court will Order a status check on this motion subsequent to the June hearings in Nova Scotia (once a ruling is received from Nova Scotia). ... Based upon the foregoing, it is thereupon, ORDERED: 1. This Court defers ruling on said Motion as to the injunction until the forum non conveniens arguments and other issues scheduled in June, 2011 via the Nova Scotia Court, are determined and the parties advise this Court of the outcome of those hearings. 2. Thereafter, the Court will enter further orders, as necessary, addressing issues that are to be ruled upon by this Court. [70] The Nova Scotia Courts did not hear the matter in June 2011. The Family Division of the Supreme Court of Nova Scotia opened its hearing of the jurisdictional/forum non conveniens issues on October 24, 2011, concluded its hearing on August 24, 2012, and issued a Decision in September 2012 (discussed below, paras 111-15, 118-21). [71] Given the lack of progress in Nova Scotia, on September 28, 2011 the Florida Circuit Court ordered that the jurisdictional issues and anti-suit injunction matter would be considered after the re-hearing of Mr. Armoyan’s motion to disqualify Ms. Armoyan’s Florida counsel. As noted above (para 29), that re-hearing had already had been scheduled for January 4, 2012. [72] As I have discussed (para 30), on January 11, 2012, the Circuit Court dismissed Mr. Armoyan’s motion to disqualify Ms. Armoyan’s counsel. So, as prescribed in its September 28, 2011 Order, the Florida Court then considered itself free to address Ms. Armoyan’s motion for an anti-suit injunction and Mr. Armoyan’s motion on the jurisdictional/forum non conveniens issues. [73] The Circuit Court dealt with Ms. Armoyan’s motion for an anti-suit injunction, and pronounced its ruling in open Court on February 14, 2012, followed by a written Order filed on February 29, 2012. By this time, Mr. Armoyan had defaulted on his support payments under the Interim Support Order. The Circuit Court’s written Order of February 29, 2012 said: ... This Court finds: A. The Wife filed her Petition for Dissolution of Marriage on October 20, 2009. B. The Court has previously denied the Husband’s motion to dismiss for lack of personal jurisdiction of himself. Thus, this Court has personal jurisdiction of the Husband. C. The Husband has requested this Court for the period of time to date for various relief including, but not limited to: i. Disqualification of Wife’s counsel and forensic accountant. (Denied with prejudice); ii. Stay of orders of this Court; iii. And, other remedies and relief as addressed by previous orders of this Court. D. In advance of this Order, this Court entered support orders requiring the Husband to pay $25,000.00 per month on behalf of the Wife and children. As well as, retroactive support (which he failed to pay; contempt orders and other ancillary orders have issued regard [sic] the same). E. This Court has under consideration the Husband’s claim of credits of $151,000.00 as to further required retroactive support. F. This Court has before it various other pleadings of the Husband including, but not limited to issues involving alleged trust agreement between the parties pursuant to the alleged Agreement Dealing with Matrimonial Relationship, Assets and all matters Related Thereto, which is subject to various motions by both parties before this Court. ... [The next three paragraphs recite the claims in Ms. Armoyan’s Florida Divorce petition and Mr. Armoyan’s Nova Scotia two Divorce Petitions] J. In respect to the Canadian proceedings, this Court faced a conundrum as to the Husband’s suggestion that the Wife’s counsel should be disqualified. Which disqualification was initially denied, appealed, and reversed for procedural error (in not permitting the Husband to testify). Said was remanded to this Court (when this Court became the successor to the previous Court) to address those issues of disqualification. As such, this Court was reluctant to proceed on any aspect other than the support of the Wife and the children, and some ancillary attorney’s fees from those hearings until the motion to disqualify was ruled upon. Such motion has been ruled upon. It has been denied with prejudice. K. Recently, this Court has entered specific orders to enforce various orders to require the Husband to pay the Wife and her legal counsel dollars previously ordered by the Court. And, the failure by the Husband to pay the same in complete disregard of this Court’s requirements; as well as, the Husband’s stipulation as to his ability to pay the amounts previously ordered. L. Currently before the Court is a Wife who is responsible for three (3) minor children, and whom this Court, as stated, ordered the Husband to pay the Wife certain support currently and retroactively, (separate maintenance) pending further order of this Court as to the other issues generally addressed in this order. M. This Court cannot permit a litigant in this jurisdiction to file pleadings before this Court; request relief before this Court; stipulate to acts before this Court; permit this Court to act on those stipulations; and based upon what the Court perceives is the litigant’s dissatisfaction with the results of this Court’s decisions to date, attempt to usurp this Court’s jurisdiction by filing actions in another jurisdiction. The result of which may (but for this order enjoining the Husband from prosecuting those actions) proceed to adjudication of identical issues or substantially similar issues that are before this Court. N. Such result, if permitted unheeded, would cause this jurisdiction, as well as, any other jurisdiction, (particularly the Canadian Court) to forego uniformity, and embrace anarchy and literally chaos should this Court would [sic] not enter this order as stated. O. The public policy of this State requires that the parties initially before the Court, (unless this Court determines lack of jurisdiction) to respect and honor the decisions of this Court. And, from this Court’s review the Country of Canada has no less of a requirement. P. Should this Court not grant the Wife’s relief as ordered, the Court finds that based upon the evidence and its own understanding of the proceedings to date, that there will be irreparable harm to the Wife, and particularly to the minor children who not only have endured the proceedings in this jurisdiction, but have been required to testify in the United States Federal Court, Case No. 10-CV 23579 JAL, [Mr. Armoyan’s Hague Convention claim], so as not to be removed from this State’s jurisdiction under the Husband’s claim that the Wife abducted the children from the Canadian jurisdiction; which said claim to date in the Federal proceedings has been rebuked, albeit under review. Based upon the foregoing, it is thereupon ORDERED: 1. The Husband and all those persons acting on his behalf including his agents, employees, and servants whom [sic] take direction from the Husband be and hereby are enjoined and restrained from prosecuting any action whatsoever for a dissolution of marriage, attorney’s fees, equitable distribution, child support determinations, applications as to custody of the children (other than as pending before the Federal District Court The Honorable Joan A. Lenard as to a review of the order of The Honorable William C. Turnoff), as well as any alleged claim of validity or invalidity to the Agreement Dealing with Matrimonial Relationship, Assets and all matters Related Thereto, pending further order of this Court. ... 4. This Court specifically recognizes and acknowledges that it cannot in any fashion enjoin another jurisdiction from exercising its ability to determine how it may choose to act. However, this Court does request any other jurisdiction, particularly the jurisdiction in the Country of Canada in the proceedings the Court is familiar with in Docket No. HFD 1201-65036, No. 735636, FFH CIV-070342, SFHMCA-068981 to honor this Court’s order and preclude the Husband from attempting to usurp this Court’s jurisdiction based upon the above findings. [74] This Order, pronounced on February 14, 2012 and filed February 29, 2012, also enjoined Ms. Armoyan from prosecuting a divorce proceeding and claims for collateral relief, other than her Florida petition, except as needed to obtain foreign recognition and enforcement of Florida judgments related to the divorce. [75] On April 4, 2012, the Circuit Court ruled on Mr. Armoyan’s motion, outstanding since November 10, 2009, to dismiss the Florida divorce based on lack of jurisdiction and forum non conveniens. Mr. Armoyan had been given notice of the hearing. The Order recited that he had been “mandated” to appear. He did not attend. The Florida Court’s “subject matter jurisdiction” turned on whether the Petitioner, Ms. Armoyan, had been resident in Florida for six months before she filed her Petition for Divorce on October 20, 2009. The Florida Court determined that it had jurisdiction, and that Florida was the convenient forum, and dismissed Mr. Armoyan’s motions to dismiss. The Circuit Court’s Order of April 4, 2012 said: This Court has entered previous orders regarding discovery in this cause. The Husband has failed to comply with the same. The Husband failed to appear for the hearing on this issue including, but not limited to, his failure to appear based upon an Order to Show Cause by this Court where his personal presence was, in fact, mandated. ... Based upon the foregoing, the Court finds as to the Wife’s residency for the purpose of the complete subject matter jurisdiction of this Court effective October 20, 2009 (the date the Petition for Dissolution of Marriage filed with this Court), the Wife: a. Has a Social Security Card; b. Has a valid Florida Driver’s License; c. Has an automobile registered in Florida; d. Has a Florida identification card; e. Had and has residential lease dated 8/27/09 for a home located at 800 NW Harbour Dr., Boca Raton, Florida, and a current lease for a residence at 401 NE Mizner Blvd., #906, Boca Raton, FL 33432; f. Has a fitness training certificate issued by Fitness Institute International on November 30, 2010; g. Has a Passport for herself dated 2/28/08 and a Passport for JA dated 8/12/08, and VA and CA both dated 8/14/08; h. Has a U.S. Employment Authorization Cards [sic] dated August 10, 2009 and March 27, 2009; i. Has evidence of her residency as of September 2008 via Aerogold/CIBC Visa account printout for the periods of 10/1/08 through 1/7/09; 1/10/09 through 5/11/09; and 5/13/09 through 11/20/09; j. Has evidence of her residency as of September 2008 via Bank of America regular checking account and regular savings combined statements dated 12/26/08 through 10/27/09; k. Has evidence of her residency as of September 2008 via American Express Holt Renfrew Card statements dated 8/10/09 through 10/10/09; l. Filed a 2009 Form 1040 for US Federal Tax; m. Filed a 2009 form T1 General for Canada Revenue; n. Has evidence of her and the children’s residency as of September 2008 via Medical and dental records for the Wife and children; o. Has evidence of her and the children’s residency as of September 2008 via School records for the children; p. Has evidence of her and the children’s residency as of September 2008 via a letter from Halifax Grammar School dated 11/25/09; q. Has evidence of her residency as of September 2008 via a letter from Armco Capital dated 5/9/08 confirming the Husband’s position and requiring residency in the United States for up to 3 years; r. Has evidence of her residency as of September 2008 via a letter from Armco Capital dated 5/20/09 regarding employment details for the Husband; and s. Has evidence of the parties’ intent to be residents of this State as of May 2008 via, the Husband’s automobile registration in this State. In addition to those findings by this Court, this Court after reviewing the testimony of the children VA age 15 and CA age 13, finds the children to be intelligent, as well as understanding the legal consequences of an oath, and mature to appreciate the significance of the proceedings before this Court. The Court referred to the testimony of the Armoyans’ children. Included in the Court’s findings “from the children’s testimony” were: • The children left Toronto with the intent to reside in Florida in September 2008; • The parties and the children have not resided in Halifax, Nova Scotia since August 2007; • The children’s intent was to be residents of the State of Florida as of September 2008, as well as their mother; • The children since September 2008 are thriving in school. They have many friends; • Medical services were provided for the children in Palm Beach County, Florida since September 2008. The Court took judicial notice of the findings, on “habitual residence”, in Judge Turnoff’s Report that dealt with Mr. Armoyan’s Petition under the Hague Convention (above, paras 23-24). The Court’s Order of April 4, 2012 concluded: Based upon the foregoing, it is thereupon ORDERED: 1. That this Court has subject matter jurisdiction over the Wife’s Petition for Dissolution of Marriage, Amended Petition for Dissolution of Marriage, and Second Amended Petition for Dissolution of Marriage, and all issues surrounding the same including, but not limited to alimony (support), child support, children issues, equitable distribution, the ability to determine the validity of a certain marital settlement agreement dated March 1, 2008 styled Agreement Dealing with Matrimonial Relationship, Assets and all Matters Related Thereto, as well as attorney’s fees and costs. 2. This Court can be the only jurisdiction to address the children issues in this cause. The children being JA age 16, VA age 15, and CA age 13 under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) Affidavit. 3. Further, the Court finds meritless (based upon the testimony before the Court and findings before the Court as stated) the Husband’s Motion to Dismiss for Lack of Subject Matter Jurisdiction and Motion as to Forum Non Conveniens. ... 7. As to the Husband’s Motion to Dismiss (based upon his claim of lack of subject matter jurisdiction) and the Husband’s Motion to Dismiss based upon his claim of forum non conveniens, both are denied with prejudice. [bolding in original Order] (l) The Florida Divorce [76] The following documents came into existence in September and October of 2012, and were not included in the record before Justice Campbell in the proceeding that is under appeal. Ms. Armoyan has applied to the Court of Appeal to add these items to the record as fresh evidence. As I will discuss (paras 127-62), the documents should be admitted as fresh evidence. Given their admission, for reading convenience I will discuss them here. [77] On September 5, 2012, in anticipation of the upcoming divorce hearing, the Florida Circuit Court issued an Order that consolidated Mr. Armoyan’s outstanding obligations. The September 5, 2012 Order recited: C. The Husband agreed as to his ability to pay alimony, and child support for the purposes of separate maintenance so as not to comply with the discovery requirements from this Court. The stipulation provided, in part, should there be a contempt proceedings [sic] from said orders the Husband had the ability to pay. See Husband’s Stipulation of Ability to Pay dated April 11, 2011, DE #403, which stated, in part: I stipulate that I have the ability to pay the amounts this Court deems reasonable and necessary for temporary maintenance and support and, for purposes of contempt, should I not comply with the order that arises out of that hearing on the Wife’s temporary maintenance and support.” ... I. The circumstances of the Wife and the children have not been modified. They continue to have a need. Based upon the Husband’s failure to pay the same as to separate maintenance, this Court has entered numerous orders for enforcement including, but not limited to, Writs of Bodily Attachment, Amended Writ of Ne Exeat, Civil Contempt Orders, Commitments on the Civil Contempt, and currently pending before the Court are Applications for Indirect Criminal Contempt on some of the same issues for failure to pay. J. Currently, it is without issue that the Wife and children’s needs remain as the Court has previously found at the hearing on separate maintenance dated August 11, 2011. The September 5, 2012 Order then directed the following: (a) The Court confirmed that Mr. Armoyan is to pay temporary (interim) alimony to Ms. Armoyan of $10,000 monthly retroactive to October 20, 2009. (b) The Court confirmed that Mr. Armoyan is to pay temporary (interim) child support of $15,000 monthly retroactive to October 20, 2009. (c) The Court gave Mr. Armoyan credit for payments made totalling $235,000, allocated as $94,000 for alimony and $141,000 for child support, and rejected Mr. Armoyan’s claims for other credits. (d) The Court confirmed that the net balance owing by Mr. Armoyan for temporary alimony through June 30, 2012 was $249,870.97. (e) The Court confirmed that the net balance owing by Mr. Armoyan to Ms. Armoyan for temporary child support through June 30, 2012 was $374,806.45. (f) The Court ordered that as of July 1, 2012, until further Order, Mr. Armoyan should pay the $10,000 monthly temporary alimony and $15,000 monthly temporary child support to the State of Florida Disbursement Unit, which appears to be the Florida equivalent of Nova Scotia’s Maintenance Enforcement authority. (g) The Court confirmed that Mr. Armoyan is to pay health insurance premiums for Ms. Armoyan and the children, and the children’s uninsured medical, dental, orthodontic and drug prescription expenses. (h) The Court ordered Mr. Armoyan to pay his son’s school tuition and expenses, and travel costs from school in Toronto to Florida for holidays. (i) The Order incorporated the Court’s various enforcement orders against Mr. Armoyan since his default on February 1, 2012, i.e. the Civil Contempt Orders, the Writs of Bodily Attachment, the Orders of Commitment, the Final Money Judgments following the contempt, and the Execution Orders. (j) The Court determined that Ms. Armoyan should have, on a temporary basis until trial, sole decision making authority over the three children. In this respect the Order said: 16. This Court is reluctant in a dissolution of marriage cause to permit any parent to have decision making authority over the other for a myriad of reasons including the legislature intent. 17. However, in this instance based upon the Husband’s abandonment of the children as to support (as well as the Wife); his failure to communicate on any level (by absenting himself from this jurisdiction in a deliberate and willful fashion); disobeying orders of this Court willfully and contemptuously; to proceeding in a foreign jurisdiction; failure to obey any order of this Court causes this Court to address the Wife’s suggestion of sole decision making authority on a temporary basis, so for the Wife to be permitted to address decisions without conferring with the Husband. Based upon the testimony, as well as the best interest of the children, this temporary request is granted. (k) The Court determined that Ms. Armoyan’s “reasonable attorney’s fees” to date were $840,036 and her “reasonable costs” were $189,039.94. The Order said that the assessment of reasonableness was, among other things, based on: (a) there were 722 pleadings to date, (b) and appeals, (c) Mr. Armoyan’s “willful disregard of the orders of this Court” which elevated Ms. Armoyan’s expenses, (d) Mr. Armoyan’s baseless claims of disqualification against Ms. Armoyan’s counsel and accountant raised her expenses, (e) litigation brought by Mr. Armoyan’s company Armco against Ms. Armoyan in the Florida Courts added to her expenses. The Order said Ms. Armoyan’s costs were “reasonable and necessary, and were incurred by Wife’s counsel generally for the litigiousness and the meritless claims of the Husband to date”. The Order noted that Ms. Armoyan’s fees and costs related to Mr. Armoyan’s failed Hague Convention application were not included in these numbers, because that matter was ancillary to the divorce proceeding. [78] On September 6, 2012, the Florida Circuit Court issued a Notice of Trial for the divorce proceeding. The Notice said the trial would occur on October 26, 2012 in Courtroom 3 of the Palm Beach South County Courthouse. The Notice states that it was “sent via U.S. Mail” to Mr. Armoyan at “6009 Quinpool Rd., 10th Floor, Halifax, Nova Scotia, Canada B3K5J7” - the address stipulated in the Circuit Court’s Order of February 14, 2012 that permitted his Florida counsel to withdraw (above, para 61). [79] On October 26, 2012, the Florida divorce proceeding was tried before Judge James Martz of the Circuit Court of the 15th Judicial Circuit in and for Palm Beach County. The Court issued a Judgment on that day (“Florida Divorce Judgment”). The 31 page Florida Divorce Judgment includes the following reasons: 3. The parties’ habitual residence since six (6) months in advance of October 20, 2009 was in the State of Florida. ... 5. This Court had and has subject matter jurisdiction of the parties and all issues, and personal jurisdiction of the parties. ... 9. The Court has entered numerous orders (which are detailed below) as it pertains to the support of the minor children and the Wife ... 10. During these proceedings the Husband has caused this Court to halt discovery required, and, permitted to the Wife, pursuant to the Rules of Family Procedure and Substantive Law of Florida. This unique circumstance was based upon the Husband’s stipulation that he had the ability to pay any dollar amount that this Court awarded on behalf of the Wife as to alimony and child support. This stipulation continues and is reincorporated as if fully set forth herein for the purposes of this Final Judgment. ... HISTORY OF PROCEEDINGS RELATING TO THE COUNTRY OF CANADA 11. To the extent (specifically) that The Honorable Justice [Douglas] C. Campbell misapprehended the acts of this Court; and to address what this Court perceives could be conflicting decisions (now that this Final Judgment is entered, as well as the previous orders are fixed) as to this Court and the Canadian Court; as well as to further request the Canadian Court for the comity this Court deserves in its orders and judgments; this Court sets out and refers to the history (in part below) by the Husband in his disingenuous conduct before this Court, and his abandonment of his legal responsibilities to the Wife and children in this marriage; as well as his contemptuous conduct both civilly, and as found by this Court previously, criminally to this Court. ... d. This Court exercised its jurisdiction over the Husband initially on October 22, 2009. While the Husband proceeded to delay (and misrepresent to this Court his purpose of the delay) nevertheless, this Court permitted the Husband his full plenary due process rights before this Court; ... e. The Husband’s retort to this Court was not merely to ignore the orders of this Court, and simultaneously appeal the orders of this Court (which appeals have been dismissed with prejudice); but, ignoring the obligations to this Court’s and its orders; seeking a haven in Nova Scotia, Canada for the purposes of disobeying orders of this Court (from this Court’s perspective) with the intent to cause the Wife and her legal counsel additional attorney’s fees and costs, which have been previously addressed by this Court; and further addressed in this Final Judgment. But, most significantly the harmful conduct by the Husband in his complete failure to support the minor children of this marriage in any form or any fashion that this Court has ordered. 12. This Court is cognizant of Justice Douglas C. Campbell’s Opinion rendered on September 5, 2012 and September 14, 2012 [see below paras] (DE #744 and DE #765). This Court is bewildered by said Opinions. ... 13. This Court is further chagrined by the decision of this Court’s sister jurisdiction (Canada), as this Court has been pellucid, in its request to the Country of Canada through its judicial system, that this Court be permitted to fully exercise (which is [sic] has) its complete jurisdiction for both the dissolution of marriage action, the validity and interpretation of the marital settlement agreement (if valid), as well as the issues of the Wife and children for support. ... 15. It is now understood by this Court, that the Husband’s actions were solely to plummet the Wife and children to financial oblivion, and to deprive her of access to legal counsel. As well as, for the Wife to abandon her claims in this Court so that the Husband can continue his pursuit of punishment to the Wife (and indirectly to the children) to achieve what the Husband contends in his view is fairness. But, from this Court’s perspective what the Husband sought and seeks to achieve was and is fraudulent, more specifically detailed below. MARITAL LAPTOP COMPUTER 16. During these proceedings, the Husband in order to circumvent the Wife’s lawyers’ ability to address the issues before this Court claimed, among other acts, that the Wife’s lawyer should be disqualified regard certain records which the Wife received through her obtaining information from a marital laptop computer. ... 18. The information that the Wife obtained from the marital laptop computer based upon the testimony at this trial (the Armco intervention action has been severed for further consideration by this Court) was ordered by this Court to be accessible to the Wife and her counsel, in part. 19. That information that was ordered to be accessible to the Wife and her counsel clearly evinced at a minimum the following: a. The Husband’s chicanery in suggesting that there was any meaningful financial disclosure to the Wife in advance of the execution of the Agreement Dealing with Matrimonial Relationship, Assets and All matters Related Thereto; b. The Husband’s writings to others indicating his reluctance to share financial information for the purposes of a full frank financial disclosure to the Wife as it pertains to the Agreement Dealing with Matrimonial Relationship, Assets and All Matters Related Thereto; c. The Husband’s lawyer, William Ryan writing to the Husband involving the complicity of the Husband in perpetrating the financial fraud and factual fraud on the Wife as stated below. INVALIDITY OF THE AGREEMENT DEALING WITH MATRIMONIAL RELATIONSHIP, ASSETS AND ALL MATTERS RELATED THERETO EXECUTED ON MARCH 1, 2008 20. The parties allegedly entered into an Agreement Dealing with Matrimonial Relationship, Assets and all Matters Related Thereto in the Province of Nova Scotia, Country of Canada on March 1, 2008 with specific provisions for the waiver of support of the Wife. (There was no delineation as to the support of the children.) There was an attempted waiver of equitable distribution, as well as legal fees and costs. The habitual residence of the parties at the time was Ontario, Canada, but the parties traveled to Nova Scotia to sign the agreement pursuant to the Husband’s attempt to secure advantages to himself in that jurisdiction. 21. In essence, the agreement precluded the Wife from any accumulation of wealth during the marriage. The agreement also provided that only the Province of Nova Scotia would have jurisdiction over the agreement (this Court addresses such clause below). 22. Initially, the Court’s predecessor, the Honorable Kenneth Stern conducted hearings before the Court regarding the legitimacy of the clauses as stated above on the Husband’s Motions to Dismiss for Lack of Subject Matter Jurisdiction, Personal Jurisdiction Based on a Forum Selection Clause and the Forum Non Conveniens Doctrine, DE #14, and the Wife’s Response to Husband’s Motion to Dismiss, DE # 58. Those motions have been denied with prejudice. ... 23. Various memoranda were provided to the Court. Testimony was undertaken by the parties via depositions of various witnesses including, but not limited to: a. Brian Church; b. Janet Chute; c. Richard Haugen; d. William L. Ryan; e. Lisa Armoyan; f. Vrege Armoyan; and g. Transcripts were reviewed by this Court for the period of November 2009 through December 2010. 24. A review of this evidence and the transcripts discloses that the document styled Agreement Dealing with Matrimonial Relationship, Assets and all Matters Related Thereto in the Country of Canada executed on March 1, 2008 (At which time the habitual residence of the parties was Ontario, Canada.) was the result of a complete fraud by the Husband upon the Wife emanating from the Husband’s attempt to persuade the Wife to execute a document known as Agreement Dealing with Matrimonial Relationship, Assets and all Matters Related Thereto. This fraud included, but was not limited to: A. No financial disclosure by the Husband to the Wife; B. The Wife was under coercion; C. The Wife was under duress; D. The Husband misrepresented material financial and factual information to the Wife; and E. The Husband concealed material financial information from the Wife solely with purpose and intent to inveigle the Wife from any financial accumulation of wealth during this marriage (marital), and to preclude her from having any ability to determine whether to execute this alleged agreement knowingly, voluntarily and only subsequent to a full frank financial disclosure. [footnote by Court:] Aside from the fraud as stated above and in addition thereto, the fact that the Agreement was executed on the exact same day the Wife received it with no time to contemplate on the same for any purpose clearly would have this Court pursuant to the substantive law in this State find the Agreement to be suspect. F. In addition to the above specific reasons, this Court further finds that the alleged financial disclosure provided by the Husband to the Wife never existed. ... G. The Husband figuratively and literally invented the documents. Wife’s lawyer, Joel M. Weissman challenged the alleged financial disclosure. By clear and convincing evidence it has been demonstrated to this Court that the Husband obtained the “forms” from his counsel, William Ryan merely days before the execution of the agreement. The Husband did not provide those forms in any fashion to the Wife. ... H. To further perpetrate this fraudulent behaviour and allegedly demonstrate to this Court that there was a financial disclosure, the Husband (unbeknownst to this Court at the time, as well as to the Wife), provided to this Court on April 1, 2010 the alleged forms that he miraculously found in his father’s apartment. ... J. The ploy by the Husband to provide the information at the hearing as opposed to timely, was circumvented not by any act of the Husband, but by the intuitiveness of the Wife’s counsel that the documents were a facade. And, that further discovery was required to be undertaken, as well as a request by the Wife through counsel for specific writings by the Husband based upon what the Wife had suggested to the Court regard attorney client privilege exception known as a crime/fraud. ... L. The Husband also misrepresented to the Wife the very nature of the agreement, causing her to believe that the document was simply a trust for her use during the marriage. 25. The testimony of two Canadian lawyers supports the Wife’s contention that there was no financial disclosure prior to the execution of the agreement. The testimony of the Husband’s attorney, William Ryan March 9, 2010: Q. It is a fact that you have not brought today before this Court any financial disclosure that was allegedly given to Brian Church? A. No, I have not brought that with me. Q. Okay. Is it in your file? A. No, it is not. ... Q. You’re not aware that when I inquired as to why he [Mr. Armoyan] didn’t produce it to me he said, “My lawyers have the records”? A. Sir, I’ve just indicated I haven’t read any depositions, so I’m not aware of any testimony he’s given. Q. If that testimony is accurate, that my lawyers have the records, as you sit her [sic] today, you do not have the records in your sparse file at this moment? A. At this moment, no, I do not. Additionally, the evidence of Brian Church was: “That I can state with certainty that these documents were not provided to me prior to the execution of the agreement by Lisa Armoyan. The so called “Statement of Property and Personal Income of Vrege Armoyan” is unsworn. This in itself would have raised a red flag to me if it had been presented to me as Mr. Armoyan’s financial disclosure. “That I have never seen any of the financial statements related to the various corporations that are attached to this document.” “If I had received an extensive package of financial documents, I would have taken time to review it and to consult with an accountant to fully understand the information before giving advice to Ms. Armoyan.” “I can state with certainty that I saw these documents for the first time on October 12, 2010.” 26. Beyond any doubt, the Husband never provided the Wife a financial disclosure of any sort or meaning. And, that the information the Husband provided to this Court’s predecessor and this Court was nothing more than a compilation of information that was placed on the form of his lawyer, William Ryan (or obtained from some other source) without his lawyer’s knowledge or consent to solely perpetrate the fraud as stated. DISQUALIFICATION 27. As the moment for disclosure of the documents became apparent to the Husband (which documents would provide the factual basis in addition to all other testimony as to the fraud as above stated), the Husband chose another path, the claim of disqualification of Wife’s counsel, Joel Weissman so as to further delay and obfuscate the trial on the merits. This Court’s predecessor [Judge Stern] entered a comprehensive order on the same more particularly attached as Exhibit “3' to this Final Judgment. 28. The Husband appealed the decision. And, due to procedural irregularities the Appellate Court (Fourth District Court of Appeal) reversed and remanded for an additional hearing on the merits. 29. When this Court was to undertake the issue of the disqualification on the merits so as to allow this Court to determine whether this Court’s predecessor was accurate in its findings, the Husband abandoned the proceedings in this forum, and sought refuge in the courts of Nova Scotia, Canada. 30. This Court, having viewed the documents provided to its predecessor, and having provided the Husband with an opportunity to be heard regarding same, reincorporates those findings of this Court’s predecessor as stated above in Exhibit “3", and reincorporates the Order Denying Respondent/Husband’s Verified Motions to Disqualify Petitioner’s Counsel and Forensic CPA, DE #330, dated December 15, 2010 as if fully set forth herein. 31. This Court further found based upon the above and during these proceedings, that Petitioner’s counsel should not be disqualified, as there was no basis for the same, and there continues to be no basis for the same. 32. The Husband deliberately misled this Court regarding his ability to abide by its order for support of the Wife and children. He stated he could not remove money from Syria, while he had sufficient funds in Canada to honor the orders, according to sworn testimony of his broker Paul Clarke, provided in October 2011. 33. The accumulation of the acts as stated above are merely a microcosm of the conduct that the Husband has attempted to perpetrate on this Court. And, the Husband continues his onslaught even though he has been enjoined, and orders of this Court and the Fourth District Court of Appeal require otherwise. HAGUE CONVENTION 34. During these proceedings, the Husband filed an Amended Verified Petition for Return of Minor Children to Canada in the United States District Court Southern District of Florida, Exhibit “4". 35. The Honorable Magistrate Judge William C. Turnoff found that neither the children nor the Wife should be required to be returned to the Country of Canada. 36. The Husband took exceptions to the issue. 37. On August 21, 2012 before the Honorable Justice Douglas C. Campbell, Husband withdrew any claim to parental rights. 38. The United States District Court Southern District of Florida dismissed his Amended Petition for Return of Minor Children to Canada [footnote - cites “Order Dismissing Case, dated September 28, 2012"]. And, the Southern District Court granted the Wife her ability to request her fees and costs as to same. 39. The purpose of the recitation of the United States District Court’s findings and conclusions is another illustration of the Husband’s tactics so as to obtain (which he did) from this Court’s predecessor stays of issues that were to be adjudicated against the Husband, due to the comity between the Federal Court and the State Court which required abatement pending the resolution of said issues, in part. NO CONTRACTUAL BAR REGARD FORUM SELECTION CLAUSE 40. The Contract between the parties known as the Agreement Dealing with Matrimonial Relationship, Assets and all Matters Related Thereto, is found by this Court to be void abinitio as stated above (and is reincorporated in the decretal paragraphs below). Therefore, this Court is not precluded from addressing the Agreement or lack thereof based upon any prohibition as to a forum selection clause or a forum non conveniens clause as a bar as claimed by the Husband. [80] Later, in its summary, the Court ordered: This Court finds that the Husband’s claim that there was a valid and binding contract styled Agreement Dealing with Matrimonial Relationship, Assets and all Matters Related Thereto between the parties entered on March 1, 2008 is denied based upon fraud in the formation of the agreement and fraud upon this Court, as well as above findings and conclusions as stated. [81] I will turn to the dispositive provisions of the Florida Divorce Judgment of October 26, 2012. [82] The Court ordered “[t]hat the marriage between the parties is irretrievably broken; and thus, it is dissolved”. [83] As to custody, the Judgment said that “[t]he Wife is awarded sole parental responsibility and custody of the parties’ minor children, [JA], [VA] and [CA]”... . [84] As to support generally, the Court said: Currently, it is without issue that the Wife and children’s needs remain as the Court has previously found at the hearing on separate maintenance dated August 11, 2011, and the hearing on temporary relief dated September 5, 2012. [85] As to arrears of support, the Court said: Child support outstanding is currently $441,105.00. The Husband is required to pay that sum forthwith. ... Alimony outstanding is currently $261,962.00. The Husband is required to pay that sum forthwith. [86] As to prospective child support, the Court said: 42. Based upon the needs of the children and the ability of the Husband to pay (as stipulated), child support shall be paid to the Wife in the sum of $15,000.00 per month.... And later: ... effective November 1, 2012 and continuing thereafter each and every month until further order of the Court, the Husband is required to pay as and for child support the sum of $15,000.00 per month to be paid on the first day of each month effective as of November 1, 2012. ... The child support as stated in paragraph 42 supra shall not be less if one or any of the children reaches the age of 18, dies, or becomes incapacitated. It shall remain the same until the youngest child reaches age, 18, dies, or becomes incapacitated. This Court finds that the Husband’s stipulation for the ability to pay support, and the children’s needs will remain as ordered whether there is one (1) minor child or three (3) minor children. [87] The Court ordered additionally that Mr. Armoyan pay for the children’s health insurance, reasonable medical, dental, orthodontic and prescription drug expenses, school tuition plus holiday travel expenses for Florida for the Armoyans’ son. [88] As to the division of matrimonial property, termed “equitable distribution” in Florida, the Court reviewed the evidence that had been entered during the pre-trial processes, and the evidence of Ms. Armoyan’s accountant. The Court said: 47. The Court finds that the parties during their intact marriage accumulated a net worth in excess of $50 million. 48. The Court finds that all assets including, but not limited to the Husband’s interest in entities known as Geovex, ARMCO, and any subsidiaries or affiliates of the same including, but not limited to, stock interests in either of those entities or entities not disclosed based upon the Husband’s failure to file financial information to this Court; partnership interests; and LLC interests are marital through the date of this Final Judgment, and should be equitably distributed when and if the Wife obtains discovery on said issues. 49. As this Court cannot address the value of any of those interests, as discovery has been stymied by the Husband, this Court specifically reserves jurisdiction to address the value of the Husband’s interest in Geovex (However, any sale proceeds of Geovex became non-business assets when it was converted to cash or other forms as to investment.), ARMCO, and any subsidiaries or affiliates of the same, stock interests in either of said entities or entities not further discovered (based upon the Husband’s failure to file financial information with this Court), partnership interests, and LLC interests should the Wife desire to pursue the valuation of those entities for the purposes of her equitable distribution. 50. However, based upon Exhibit #1 in evidence and excluding the value of the entities in paragraphs 49 above, the Husband does owe to the Wife an equalizing payment in the amount of $17,827,293.00 dollars (in United States Currency), which this Court requires the Husband to pay within ten (10) days from the date of this Final Judgment. [89] As to alimony, or spousal support, the Court said that, if Ms. Armoyan was to receive the equitable distribution of $17,827,293, as ordered, she would not need permanent periodic alimony. The Court ordered that, subject to a cap of $17,827,293, Mr. Armoyan pay to Ms. Armoyan durational alimony of $14,612 per month, due on the first day of each month starting November 1, 2012. [90] As to costs, the Court ordered Mr. Armoyan to pay Ms. Armoyan’s attorney’s fees and costs in the amount of $1,201,217.47 and her forensic accountant’s fees and costs of $273,375. [91] The Court issued a permanent injunction to enjoin Mr. Armoyan from prosecuting a proceeding for the dissolution of marriage and related relief elsewhere than before the Florida Court. [92] The Court concluded with this passage: COMITY 61. It is patently obvious to this Court that unless the appellate courts in Canada enforce this Final Judgment, or this Court’s brethren in Canada (Justice Douglas C. Campbell) modifies his position as to this Court’s jurisdiction and orders, this Final Judgment and the previous orders of the Court incorporated in this Final Judgment except as modified may remain outstanding, and as such, the Wife nor the children may never achieve the ability to have the dollars that are rightfully hers and the children’s as so ordered. 62. This Court may only request that the justice system in Canada (and in particular, Nova Scotia) appreciate the consequences of the failure to enforce this Final Judgment in its entirety as to the Husband both as to support and equitable distribution, as well as legal fees and costs. Said consequences are painfully and patently obvious, particularly in this instance, where a litigant (the Husband) was and is required by court order to comply with that court’s order; where the litigant (the Husband) personally appeared before the court; requested relief from the court; and only when the litigant’s (the Husband’s) relief has been denied or stymied has the litigant (the Husband) then abandoned the Court’s orders and the Court’s jurisdiction in which the litigant (the Husband) sought assistance; traversed to another court in another country although enjoined from that process, seeking a more favorable result. For the Husband to be rewarded by such conduct; and particularly in this instance where the Wife and children are economically disadvantaged; as opposed to honoring the orders of this Court with full and complete comity; where, specifically subject matter and personal jurisdiction has been adjudicated; and every opportunity for fairness and due process has been permitted, is a sad moment and not only results in an injustice, it transmutes in a complete failure of the judicial system to obtain assistance from another’s judicial system which system is based upon the same common law principles so fundamental to each of the country’s citizens. 63. This Court respectfully requests the Canadian Court’s system to review this Final Judgment and the findings contained in this Court’s previous orders, and honor the same so as to permit Lisa Armoyan and her children to obtain the quintessence of fairness that is required by courts of all countries and to enforce this Court’s order forthwith. [93] Mr. Armoyan has not appealed from the Florida Divorce Judgment. The time limit for an appeal has expired. 3. The Nova Scotia Proceeding [94] On December 9, 2009, Mr. Armoyan petitioned for divorce in the Supreme Court of Nova Scotia (Family Division). (a) Forum Conveniens for the Computer Issue [95] On December 11, 2009, Armco Capital Inc., owned by Mr. Armoyan and his brother, applied in the Supreme Court of Nova Scotia for an order that Ms. Armoyan had unlawfully cloned information from Armco’s computer (see above, para 27), and for an order enjoining her from using or communicating that information. On January 12, 2010, Ms. Armoyan applied in the Supreme Court of Nova Scotia for dismissal or stay of Armco’s application, on the basis that the Florida Courts were the convenient forum to determine these issues. On March 17, 2010, Justice Moir ruled that Nova Scotia’s court had jurisdiction simpliciter, but that Florida was the convenient forum. He stayed Armco’s application (2010 NSSC 102). Armco appealed to this Court. Three days before the due date for its factum, Armco discontinued its appeal of the forum non conveniens ruling. The Court of Appeal continued to hear other issues, related to costs, and issued a decision on February 16, 2011 (2011 NSCA 22). (b) Mr. Armoyan’s Second Divorce Petition [96] On December 22, 2010, Mr. Armoyan filed a Notice of Discontinuance of his divorce petition. This resulted from a concern that he had not resided in Nova Scotia for one year preceding his December 2009 petition, as required by s. 3(1) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) to establish the Nova Scotia Court’s jurisdiction simpliciter (see the Decision under appeal, 2012 NSSC 323, para 41). [97] Also on December 22, 2010, Mr. Armoyan filed a second petition for Divorce in the Supreme Court of Nova Scotia (Family Division), and an application under the Matrimonial Property Act, R.S.N.S. 1989, c. 275. His Petition relied on the Marital Agreement signed by the parties on March 1, 2008. (above, para 6) (c) Ms. Armoyan’s Forum Non Conveniens Motion [98] On February 16, 2010, Ms. Armoyan had applied in the Supreme Court of Nova Scotia (Family Division) to dismiss Mr. Armoyan’s initial Nova Scotia Divorce Petition on the basis that the Nova Scotia lacked jurisdiction simpliciter and, alternatively, to stay the proceeding on the ground of forum non conveniens. After Mr. Armoyan filed his second divorce petition in December 22, 2010, Ms. Armoyan moved again on March 4, 2011, for the same relief. [99] Ms. Armoyan’s jurisdiction and forum non conveniens motion initially was scheduled for May 18, 2010. On that day, Justice McDougall of the Supreme Court of Nova Scotia (General Division) directed that the matter be transferred to a judge of the Supreme Court (Family Division). After an exchange of correspondence between counsel and the Court’s scheduling office, the matter was scheduled for a conference, on December 17, 2010, with a judge of the Family Division. At that time, a subsequent conference was scheduled for December 20, 2010 with Justice Douglas Campbell of the Family Division. Since then, Justice Campbell has had carriage of the jurisdictional and forum non conveniens motions. (d) Mr. Armoyan’s Movement of Assets [100] On January 13, 2011, Justice Campbell heard evidence and argument respecting Ms. Armoyan’s motion to enjoin the impending conveyance of their former matrimonial home by Mr. Armoyan. Mr. Armoyan had signed a deed to convey the matrimonial home to his mother in return for a promissory note. Mr. Armoyan testified that the price was $3 million less the mortgage balance. He said he intended to apply the proceeds toward his monthly expenses and invest the rest in China, India, the Middle East and the United States. [101] Mr. Armoyan also testified that, before his separation from Ms. Armoyan, he had owned 50% of the shares of Geovex Investments Limited, which owned other companies, including Armco. The other shareholder of Geovex was his sister-in-law. Mr. Armoyan testified that in 2008 his interest in Geovex was worth between $22 million and $24 million and, after the Armoyans’ October 2009 separation, he conveyed his common shares to his sister-in-law for $80,000 to $90,000. He said the company had redeemed his preferred shares for $20 million. He said that Armco had redeemed his preferred shares in that company. [102] Mr. Armoyan testified that he had transferred $23 million to the Middle East, notably Lebanon and Syria. [103] While in Florida, Mr. Armoyan had purchased a yacht. He testified that his yacht was worth $1 million. By the time of his testimony, it had been located in Lebanon. [104] On January 14, 2011, Justice Campbell dismissed Ms. Armoyan’s motion for the interim injunction against the conveyance of the matrimonial home. The judge’s oral reasons included: In neither of those settings is she [Ms. Armoyan] claiming damages. The reference to this rule that I must be satisfied that there is a risk that the assets will be made if unavailable to satisfy a judgement [sic] for the damages should be interpreted to mean a judgement [sic] for damages by the party claiming the injunction. And there is no such claim. There ultimately would be a claim for a money award in the divorce after the - if and when the marriage contract is successfully set aside. But the only claim being made by the wife for that type of relief is being done in the State of Florida. And these rules apply to this court and only to this court. ... One practical effect of that is that really the validity of the marriage contract needs to be determined first in time and in order to do that there would have to first be a determination of whether that is going to be done in Nova Scotia or in Florida. If and when that was accomplished and it was determined that it was to be done in Nova Scotia, then it would - the parties would be on a path toward a money award that might have given rise to the right of this particular applicant to get an injunction from this particular court. [105] In September 2011, Justice Campbell heard Ms. Armoyan’s motion for an injunction to restrain Mr. Armoyan from moving his money from Nova Scotia to the Middle East. On September 16, 2011, Ms. Armoyan’s counsel sought to question a National Bank witness who was under subpoena and was present in the courtroom with banking records, about Mr. Armoyan’s bank balances. Mr. Armoyan objected to the testimony of the Bank witness on the basis of defects in the subpoena process, namely: (1) the subpoena was served on the witness instead of on the Bank’s recognized agent, and (2) the subpoena was issued under the trial Rule 50.05 instead of the motions Rule 23.13. Justice Campbell quashed the subpoena because: There is an admission by the Applicant that her subpoena was issued with some technical defects. They have been referred to by both counsel for the Respondents - well, the Respondent and the potential involved witness. And so it really comes down to whether or not I would exercise my discretion to overrule the rule, and there’s not much doubt about the fact that I have the right to do that, and in response to the most recent comment, I can even exercise that discretion when there has been a failure to provide adequate notice, when there has been a failure to meet all of the expectations of the rule. In other words, I could even have Ms. McGinty correct her perfections orally by making a submission to me orally on the spot, accept her amendments to her process orally, and exercise my discretion. To do so, however, would be more significant in this case than in others, given the fact that it’s complicated by the fact that processes are going on both in Florida and here, and that it has not yet been determined whether or not this Court will be exercising its jurisdiction. So, in that context, I accept the fact that it would be unfair to Mr. Armoyan, and to some extent to the bank, to allow the subpoena. So I will quash the subpoena, and Mr. O’Reilly is released from it obviously, and he’s free to go. ... [106] On September 20, 2011, Justice Campbell gave an oral decision that deferred, to an unspecified date, consideration of Ms. Armoyan’s motion for the injunction against Mr. Armoyan’s movement of assets offshore. The judge’s reasons began with these comments on the prolixity of the litigation: So far, the case has been engaged in a quagmire of procedural issues because the parties are currently residing in different jurisdictions, the wife living in Florida in the United States, and the husband living mainly in Halifax, Nova Scotia. ... I spoke of a quagmire earlier. That’s the best word I can think of to describe the process that the parties are facing. There are many moving targets. ... There have been many applications in more than one court in Florida and many applications either before this Court or pending before this Court in order to get to a resolution. ... And it’s evident to me through the mounds of paperwork that I’ve been provided so far, that the parties are spending tens of thousands, if not hundreds of thousands of dollars in trying to get to a resolution in this case. The judge’s reasons for deferring consideration of Ms. Armoyan’s motion included: The second issue before me is to grant an injunction, which would restrain the Respondent from removing assets from Nova Scotia. The facts that are the background to that application relate to the removal by the husband of substantial assets from Nova Scotia and Canada and to invest them in the Middle East, largely through a bank in Lebanon, which in turn purchased investment vehicles in Syria. I’m told that it was approximately twenty million dollars in the first instance. There was a subsequent removal of money in a much lesser amount. In addition to that, the husband is the trustee of a trust in favor of the wife, which was set up in accordance with the terms of the disputed marriage contract, and a large portion of that fund was also invested in the Middle East by the husband. He points out that the terms of the trust permit him to do so. His explanation for all of this investing is that he feels the market is not good in this country, that he has had a history of investing in emerging markets, and that he made a business decision to do so with a substantial portion of his net worth. I must comment that it seems to be somewhat of a strange decision to make in light of the unrest that exists in various parts of the Middle East. One of the difficulties is the prospect of giving an order in the form of an injunction when I have not yet decided whether to accept jurisdiction with respect to the merits of some or all of the points of relief being sought. It is true that the party looking for that injunction is the party who is seeking to have me defer the Court’s jurisdiction in favour of Florida. ... I would say to the Respondent - to the husband that the perception that he leaves me with in taking the money to countries that have some stability problems is not the best perception. It does beg the question of whether or not he’s attempting to get the money out of reach of the wife for any ultimate judgement [sic] that she may get in either these proceedings or the Florida proceedings. And it would have been better for him not to have done that. Having said that, I have made a decision that I will defer a final decision on the question of the injunction until I deal with the question of jurisdiction. I may then defer it again until I deal with some other issues that are coming up. ... [107] Justice Campbell’s later Decision of September 14, 2012, para 50, after the forum non conveniens trial, found: 4. At the time of the separation of the parties most, if not all, of the Petitioner’s assets whether held personally or in companies in which he had an interest, were located in Nova Scotia. Subsequent to the separation, the Petitioner transferred approximately $23 million to the Middle East in 2010. The Petitioner’s yacht is located in Lebanon. Other sums of money have also been transferred to the Middle East subsequently. ... At the forum non conveniens trial, Mr. Armoyan testified that he had placed $7 million in a deposit in Syria and $16 million in the Byblos Bank in Lebanon, and that he subsequently transferred $1.6 million from Nova Scotia to the Middle East. He also testified that the proceeds from his conveyance of the matrimonial home to his mother were in the form of a promissory note, rather than cash. (e) Res Judicata of Florida Ruling on Privilege [108] On December 15, 2010, Judge Stern of the Florida Circuit Court had ruled that Mr. Armoyan could not claim privilege to documents cloned from the computer (above, paras 28, 31). On May 24, 2011, Ms. Armoyan moved before Justice Campbell for a ruling that the privilege issue was res judicata, meaning that those documents would be admissible in the Nova Scotia proceeding. On May 31, 2011, Justice Campbell denied the motion (2011 NSSC 242). His Decision said: [34] In his brief, counsel for the husband has suggested that if I get to the answer that I have now rendered, I should wait until the jurisdictional hearings to freshly determine whether the documents ought to be admitted for reasons other than the application of the doctrine of res judicata. I will do so. [109] Ms. Armoyan appealed Justice Campbell’s (May 31, 2011) ruling to the Nova Scotia Court of Appeal. Before the hearing in this Court, the Florida District Court of Appeal (on July 6, 2011) overturned Judge Stern’s (December 15, 2010) ruling on a procedural ground - to permit Mr. Armoyan to give testimony - and remitted the issue for a rehearing before the Circuit Court. On December 1, 2011, the Nova Scotia Court of Appeal (2011 NSCA 110) dismissed Ms. Armoyan’s appeal from Justice Campbell’s (May 31, 2011) ruling because: [8] On July 6, 2011, the 4th District Court of Appeal for the State of Florida quashed the lower court order and remitted Mr. Armoyan’s motion to disqualify back to the trial court for an evidentiary hearing. It was conceded on this appeal that the decision by the Florida Appeal Court rendered the res judicata issue moot. [110] After the Nova Scotia Court of Appeal’s (December 1, 2011) ruling: (a) The Florida Circuit Court’s rehearing occurred, on January 4, 2012, at which time Mr. Armoyan failed to appear (above, para 30); (b) On January 11, 2012, the Florida Circuit Court dismissed Mr. Armoyan’s motion to disqualify (above, para 30); (c) On October 26, 2012, the Circuit Court’s Divorce Judgment “reincorporate[d]” Judge Stern’s findings from the Judgment of December 15, 2010 (above, paras 31 and 79 - para 30 of Florida Divorce Judgment); (d) Mr. Armoyan has not appealed the Florida Divorce Judgment of October 26, 2012. His appeal period has expired. (f) The Jurisdiction/Forum Non Conveniens Hearing [111] On December 20, 2010, Justice Campbell had scheduled dates in June and October of 2011 for the hearing of Ms. Armoyan’s jurisdiction/forum non conveniens motion. On June 20, 2011, counsel and Justice Campbell discussed the sequence in which the issues would be addressed at the jurisdictional hearings, to start in October 2011. [112] On October 24, 2011, the hearing of the jurisdictional and forum non conveniens issues began. Justice Campbell heard evidence on October 24 through October 27, 2011. The trial did not conclude. The trial was adjourned to February 28-29, March 1 and 2, 2012. (g) Adjournment of February 24, 2012 [113] On February 20, 2012, Ms. Armoyan’s counsel wrote to Justice Campbell, copied to Mr. Armoyan’s counsel, to request an adjournment of the scheduled hearing in late February. Her letter gave four reasons: 1. On January 4th and 5th, and February 14th, there were hearings scheduled in Florida with respect to which Mr. Armoyan advised the Court he could not attend because of his health issues. 2. Mr. Armoyan failed to pay his child support in the month of February, and he has lost contact with his children, all of which I understand to be related to his health issues. 3. On February 14th, the Court in Florida issued a number of Orders, including an Order enjoining Mr. Armoyan from pursuing litigation with respect to this divorce in Canada. I do not have the draft of the Order yet, but I will provide it as soon as possible. 4. My personal circumstances, details of which I will provide if required, make it impossible for me to engage in litigation at the present time. If Your Lordship requires further information, please let me know. The fourth item refers to the fact that Ms. McGinty’s husband had become terminally ill, and Ms. McGinty was required to tend to his care. He died four weeks later. [114] On February 24, 2012, Justice Campbell convened to consider the request for an adjournment. Ms. McGinty’s associate, Ms. Walker, appeared for Ms. Armoyan, and Mr. Kelly for Mr. Armoyan. Justice Campbell adjourned the hearing of the jurisdictional and forum non conveniens issues until August 20-24, 2012, on the condition that Ms. Armoyan not advance the Florida proceedings until Justice Campbell’s eventual decision on the jurisdictional and forum non conveniens issues. His Order of March 13, 2012 said: ON THE MOTION OF Gordon R. Kelly, counsel for the Petitioner, Vrege Armoyan, the following is ordered pursuant to the Civil Procedure Rules, and any other applicable legislation: 1. The jurisdiction Motion scheduled to resume hearing on February 28-29, and March 1-2, 2012 shall be adjourned to August 20, 21, 21 [sic - 22], 23, and 24, 2012. 2. A condition of granting the adjournment herein is that the Respondent, Lisa Armoyan, shall ensure that the current status of the proceedings in the State of Florida, United States of America, with respect to the parties, Vrege Armoyan and Lisa Armoyan, are maintained and not advanced in any manner whatsoever from February 24, 2012 until completion of the adjourned Hearing and Decision of this Honourable Court. 3. This Order does not preclude or operate to prejudice Lisa Armoyan from attempting to enforce any Order prior to February 24, 2012 in the proceedings in the State of Florida, United States of America, nor does this Order preclude or operate to prejudice Vrege Armoyan from defending attempts to enforce any Order granted prior to February 24, 2012 in the proceedings in the State of Florida, United States of America. [115] Later (paras 165-71, 178) I will discuss Justice Campbell’s reasons for this decision and, in particular, for his Condition #2. (h) Ms. Armoyan’s Appeal of the Condition Restraining the Florida Proceeding [116] On March 27, 2012, Ms. Armoyan filed with the Court of Appeal an Application for Leave to Appeal and a Notice of Appeal from Condition #2 in Justice Campbell’s Order of March 13, 2012. Essentially, Ms. Armoyan says that Condition #2 imposed an anti-suit injunction against her Florida divorce proceeding, and that Justice Campbell’s reasons for the condition offend the principles that govern whether a court should issue an anti-suit injunction. I will term this the “Adjournment Appeal” (CA # 389169). [117] Ms. Armoyan’s Adjournment Appeal initially was scheduled for hearing by the Court of Appeal on September 26, 2012. Before that hearing date, Justice Campbell issued his Decision on the jurisdiction and forum non conveniens issues, that I will come to next. Ms. Armoyan also has appealed that Decision. On September 26, 2012, this Court granted Ms. Armoyan’s motion to consolidate the two appeals. The Court heard the consolidated appeal on June 19-20, 2013. (i) Conclusion of the Jurisdiction/ Forum Non Conveniens Proceeding [118] I will return to the chronology at trial before Justice Campbell. [119] The hearing of the jurisdiction/forum non conveniens matter continued on August 20-23, 2012 with more witnesses, and concluded on August 24 with submissions. [120] On August 22, 2012, during Mr. Armoyan’s cross-examination, counsel for Ms. Armoyan attempted to confront Mr. Armoyan with a document from the documents that Ms. Armoyan had cloned from the computer (discussed above, paras 27, 95, 108-10). Mr. Armoyan’s counsel objected. Justice Campbell upheld the objection and disallowed the evidence. Ms. Armoyan appeals against the judge’s ruling. I will address this matter as the Fourth Issue in the Analysis. [121] On September 5, 2012, Justice Campbell issued a short decision, followed on September 14, 2012 with more expansive reasons. The reasons noted that Mr. Armoyan had withdrawn his claim in Nova Scotia for custody of his children. The judge ruled that for all other matters - including the divorce, child support, spousal support, division of matrimonial property and the validity of the Marital Agreement - the Nova Scotia Supreme Court (Family Division) had jurisdiction simpliciter and was the forum conveniens. I will discuss the judge’s reasons in the Analysis. (j) Ms. Armoyan’s Appeal of Forum Non Conveniens Ruling [122] By a Notice of Appeal dated September 18, 2012, amended on October 9, 2012, Ms. Armoyan applied for leave to appeal and, if granted, appealed Justice Campbell’s rulings of September 5 and 14, 2012 to this Court (C.A. # 407024). I will term this the “Forum Non Conveniens Appeal”. As noted, on September 26, 2012, this court consolidated the Forum Non Conveniens Appeal and the Adjournment Appeal. My reasons will address both appeals. [123] Before the appeal hearing, Ms. Armoyan moved to add fresh evidence to the record. Mr. Armoyan countered with a motion to strike Ms. Armoyan’s fresh evidence and with his own motion to add fresh evidence. This Court heard the fresh evidence motions during the hearing of the appeal proper on June 19-20, 2013. [124] On June 20, 2013, the Court reserved its decision on the fresh evidence motions and the appeals. 4. Issues [125] I will deal first with the fresh evidence motions. Second, I will discuss the Adjournment Appeal, where Ms. Armoyan challenges Condition #2 in the Adjournment Order of March 13, 2012. Third, I will address Ms. Armoyan’s Forum Non Conveniens Appeal, and Justice Campbell’s Decisions of September 5 and 14, 2012. Fourth, I will discuss Ms. Armoyan’s appeal from the judge’s ruling of August 22, 2012, that disallowed evidence from the cloned computer material. [126] I will address the standard of review within the discussion of each issue. 5. First Issue - Fresh Evidence [127] On September 18, 2012, before the originally scheduled hearing of Ms. Armoyan’s Adjournment Appeal, Ms. Armoyan filed with the Court of Appeal her affidavit, sworn September 18, 2012. The Affidavit was in support of Ms. Armoyan’s request that the Adjournment Appeal be consolidated and heard with the forum non conveniens appeal. Ms. Armoyan’s Affidavit says: 5. On the 14th day of February 2012, the Honourable Judge Martz of the 15th Judicial Circuit Court of Palm Beach County granted an Order enjoining the Respondent, Vrege Armoyan, from prosecuting any action in courts outside of Palm Beach County, relative to the dissolution of our marriage. That Order was pronounced on February 14 but granted on February 28, ... 6. This order was immediately brought to the attention of the Honourable Justice Campbell in the context of a request for adjournment of the hearing schedule for February 28, 29 on the 1st and 2nd of March, 2012. This was one of several reasons for the request for adjournment. At the time the respondent had reported to the Florida Court that he was in ill health. A remaining pressing issue was that my Counsel was unavailable as her spouse of 35 years was terminally ill, and in fact died four weeks thereafter. ... 10. ... I have been living on credit cards and the charity of my family for many months. I have no source of income and three teenage children to support. ... 11. ... The Respondent should have paid $200,000 in child and spousal support between February 2012 and September 2012. He has paid a total of $31,900 for my support and the support of the three children. He has ignored orders to pay arrears and costs. ... 14. I have received an approximate overall average sum of $3,500 a month for the last nine months and my rent alone is $3,150 a month. I have no income as I am a student with three active teenagers relying upon me. The respondent is a multi-millionaire with virtually unlimited resources. The respondent has repeatedly asserted that he has given me $880,000 since the separation. All of this money came from my trust because the Respondent was directed to give it to me by the Florida Court. My legal fees and costs in Florida alone now exceed $1,000,000. ... [128] On March 15, 2013, Ms. Armoyan applied to add fresh evidence to the appeal record. The tendered evidence was an affidavit of Ms. Armoyan sworn March 6, 2013. Her affidavit attaches four Exhibits: Exhibit A - the Order of the Florida Court dated September 5, 2012 (discussed above, para 77); Exhibit B - the Florida Notice of Trial dated September 6, 2012 (discussed above, para 78); and Exhibit C - the Judgment of the Florida Circuit Court dated October 26, 2012 dissolving the marriage and providing relief (discussed above, paras 79-92). Ms. Armoyan’s affidavit states: 6. The exercise of jurisdiction by the Florida Court has terminated all but enforcement proceedings in Florida. The decision has not been appealed by the Respondent, nor has he complied with its provisions. 7. I make this Affidavit in support of my Motion that the Court of Appeal accept new evidence on the Appeal. I am no longer married to the Respondent. The so called “agreement” upon which the Respondent has been relying has been adjudicated as void for fraud by a recognized court after protracted litigation. I have spent over $400,000.00 in legal fees in Florida. I owe an additional $700,000.00 in legal fees in Florida. I do not have the resources, financial or otherwise, to re-litigate this divorce in Nova Scotia. I respectfully ask that this Honourable Court accept this new evidence so it can assess the chaos and unfairness that have been created by the Orders under Appeal. 8. The Honourable Motion Judge expressed his view that “the separate maintenance order in the Florida Court would be intended there to have ongoing effect.” (paragraphs 8 and 9 of the September 5 decision, appeal book Part 1 Page 16). The Nova Scotia [sic] acknowledged the non-payment of that order but subsequently suspended enforcement of it until after the trial or the appeal of the jurisdiction decisions. This contradiction created hardship for me and my children and further exacerbated the chaos resulting from the competing proceedings. (Exhibit D). [129] I will add a word about Ms. Armoyan’s Exhibit D, cited in her paragraph 8. Under the Interjurisdictional Support Orders Act, S.N.S. 2002, c. 30, as amended (“ISO Act”), on March 21, 2012, Ms. Armoyan had registered the Florida Circuit Court’s Interim Support Order of August 11, 2011 (above, para 54) with the Supreme Court of Nova Scotia (Family Division). On May 25, 2012, Mr. Armoyan filed with the Family Division a Notice to Set Aside the Registration further to s. 20(2) of the ISO Act. Exhibit D of Ms. Armoyan’s tendered affidavit is an Order of Justice Campbell dated November 26, 2012. That Order adjourned Mr. Armoyan’s motion to set aside, and suspended the enforcement of the Florida Interim Support Order, in the words of Justice Campbell’s Order: ... until the conclusion of the Trial of the proceedings bearing the Court File Numbers 1201-65036 (73536), SFHCIV - 070342, and SFHMCA - 068981 [i.e. Mr. Armoyan’s Petition for Divorce and Application under the Matrimonial Property Act] or until the conclusion of any appeal(s) commenced in relation to the Decisions rendered by this Honourable Court on the jurisdiction Motion, whichever comes later. So any enforcement in Nova Scotia of Florida’s Interim Support Order is stayed until the later of this decision by the Court of Appeal and the conclusion of the divorce and matrimonial property proceedings in the Family Division. [130] On May 29, 2013, Mr. Armoyan filed a motion in the Court of Appeal to: (1) strike sentences 2 through 6 of paragraph 7, and sentences 2 and 3 of paragraph 8 of Ms. Armoyan’s affidavit of March 6, 2013, and (2) add, as fresh evidence, his own affidavit sworn May 29, 2013. Mr. Armoyan’s tendered affidavit says: (a) Mr. Armoyan (paras 5-8) recites when Ms. Armoyan filed her Notice of Appeal from Justice Campbell’s Decision of September 14, 2012, when Ms. Armoyan amended her Notice of Appeal, and when Ms. Armoyan moved to add fresh evidence. (b) Mr. Armoyan (paras 9-14) recites that: (i) they were married for 16 years, (ii) they separated in October 2009, (iii) Ms. Armoyan signed the Marital Agreement on March 1, 2008, (iv) the “Marriage Contract deals with our respective rights and obligations” and that “any court action taken in connection with any of the matters in the Agreement is to be brought in the courts of Nova Scotia and no other jurisdiction”, and (v) further to the Marital Agreement, Ms. Armoyan deeded the matrimonial home to Mr. Armoyan, and Mr. Armoyan established a $2 million trust fund for Ms. Armoyan. (c) Mr. Armoyan (paras 15-17) then states that Ms. Armoyan has sued Mr. Armoyan’s mother in the Supreme Court of Nova Scotia (Hfx. File # 396221). He says this action “relates to the transfer of 855 Marlborough Woods, the former matrimonial home”, from Mr. Armoyan to his mother. Mr. Armoyan’s affidavit refers to Ms. Armoyan’s Statement of Claim and says that Ms. Armoyan “alleges the sale of the property was a fraudulent transaction and, as part of the relief sought, requests an Order setting aside the transfer of the property”. (d) Mr. Armoyan (paras 18-19) states that Ms. Armoyan has sued Mr. Armoyan’s sister-in-law and Geovex Investments Limited (Hfx. File # 409425). He says that the relief claimed by Ms. Armoyan includes “an Order setting aside the transfer of shares as being made with fraudulent intent”. Mr. Armoyan’s Affidavit attaches Ms. Armoyan’s Statement of Claim as an exhibit to his Affidavit. That Statement of Claim alleges: 6) The Plaintiff states that upon receiving the above Petition for Dissolution of Marriage in October, 2009, the Transferor [Mr. Armoyan] began to engage in a course of conduct designed to ensure that his assets were safe from execution by the Plaintiff, specifically with respect to orders issued by the courts for child support, spousal support and/or division of matrimonial property. Examples of such conduct include, but are not limited to: selling the former matrimonial home at 855 Marlborough Woods, Halifax, Nova Scotia to his mother Anahid Armoyan in exchange for a promissory note, moving investments from the Halifax branch of National Bank Financial Limited to Lebanon and Syria, moving his yacht to Lebanon, and the conveyance described herein. ... 8) Following the commencement of the Florida divorce proceeding, the Transferor divested of his shares in Geovex [Geovex Investments Limited] to the First Defendant [his sister-in-law Hripsime Armoyan]. ... 9) The Plaintiff states that if there was monetary consideration for the transfer of shares, all or most of those funds were immediately transferred to the Middle East, out of reach of the Plaintiff. (e) Mr. Armoyan’s Affidavit (para 21) then states that Ms. Armoyan “has been provided with financial support of approximately $1,020,880.00 since October 2009 from either my personal accounts or the Trust Fund”. He breaks this down (paras 22-27) as: (i) $550,000 from December 2009 to September 2010 “transferred from the Trust Fund” to Ms. Armoyan; (ii) Ms. Armoyan’s withdrawals from a joint bank account, in unspecified amounts (but Mr. Armoyan says he deposited $53,380) into the account from November 13, 2009 to December 31, 2010; (iii) support payments to Ms. Armoyan totalling $45,000 for February, March and April of 2011; (iv) $25,000 monthly from April 22, 2011 to January 2012 [further to the Florida Circuit Court’s Interim Support Order]; and (v) $10,000 monthly since March 2012. (f) Mr. Armoyan’s Affidavit (para 28) concludes by saying “I contribute in other ways to our children” and lists: (i) $500 monthly spending money to his daughters; (ii) buying a car for his older daughter and paying for its insurance; (iii) paying his son’s tuition at a private school in Toronto, helping him with living expenses for his activities like jiu jitsu, “provided [his son] with a car” and “I pay the cost of maintenance and insurance on the vehicle in [his son]’s possession”; (iv) paying for his older daughter’s math tutoring and SAT preparation and for activities such as gym memberships for his daughters. (a) The Law on Fresh Evidence [131] Rule 90.47(1) permits the Court of Appeal to admit fresh evidence on “special grounds”. The test for “special grounds” stems from Palmer v. The Queen, [1980] 1 S.C.R. 759, at p. 775. Under Palmer, the admission is governed by: (1) whether there was due diligence in the effort to adduce the evidence at trial, (2) relevance of the fresh evidence, (3) credibility of the fresh evidence, and (4) whether the fresh evidence could reasonably have affected the result. Further, the fresh evidence must be in admissible form. Nova Scotia (Community Services) v. T.G., 2012 NSCA 43, paras 77-79, leave to appeal denied [2012] S.C.C.A. 237, and authorities there cited. McIntyre v. Nova Scotia (Community Services), 2012 NSCA 106, para 30. [132] This Court’s practice is to (1) receive (without necessarily admitting) the fresh evidence at the appeal hearing, (2) hear counsel’s submissions for or against admission, (3) hear the submissions on the merits of the appeal, (4) reserve on both the admissibility of the fresh evidence and the merits, then (5) issue one decision that rules on the fresh evidence motion and the merits of the appeal: Nova Scotia v. T.G., paras 74-75; R. v. Stolar, [1988] 1 S.C.R. 480, at pp. 491-2. This means that, at the hearing, counsel must be prepared to argue the appeal’s merits on both assumptions - that the fresh evidence is admitted and that it is disallowed. [133] Before the hearing of this appeal, the Court notified counsel by letter that the Court would follow this practice for these fresh evidence motions. At the end of the hearing, the Court reserved its ruling on the fresh evidence motions. (b) Application of the Palmer Tests [134] As to Palmer’s first test - due diligence - Mr. Armoyan’s memorandum states: 67. It is Mr. Armoyan’s position that the Appellant failed to exercise due diligence in seeking to introduce the documents and Orders attached at Tab B to E of the Appellant’s Submissions. 68. The Florida Order dated September 5, 2012, the Florida Notice of Trial dated September 6, 2012, and the Florida Final Judgment dated October 26, 2012 were in existence and known to or ought to have been known to, the Appellant prior to the issuance of the Order (jurisdiction) on November 7, 2012 which finalized the Decision of the Honourable Justice Campbell on the jurisdiction Motion. Mr. Armoyan submits that Ms. Armoyan could have requested Justice Campbell to alter his Decisions of September 5 and 14, 2012 and could have tendered the Florida Divorce Judgment in support of that request. By not doing so, according to the submission, Ms. Armoyan failed to exercise due diligence. [135] I respectfully disagree. The Florida Divorce Judgment came into existence on October 26, 2012, after the close of evidence on Nova Scotia’s jurisdiction/forum non conveniens trial, after Justice Campbell’s Decision on that matter, and after Ms. Armoyan had filed a Notice of Appeal to this Court, on September 18, 2012, from Justice Campbell’s Decision. No principle of due diligence under Palmer requires an appellant to apply to the trial judge for a reversal of his own ruling, as a condition precedent to pursuing her appeal. If she may pursue her appeal, then she may engage Rule 90’s appellate process that includes a fresh evidence motion. [136] Mr. Armoyan challenges the “credibility” of the Florida Divorce Judgment under Palmer’s third test. His counsel’s written submission says the Florida Divorce Judgment is “defective”, and that Mr. Armoyan should be entitled to challenge the judgment before it is admitted into evidence. [137] I reject that submission. Mr. Armoyan had the opportunity for input, to forestall a “defective” ruling, by appearing at the Florida divorce hearing. Instead, from early 2012 onward, he chose to (1) avoid the Florida Court’s processes, that he had engaged for the prior two years to delay the matter, (2) countenance the withdrawal of his counsel from the Florida record, (3) default under Florida’s Interim Support Order for his wife and children, (4) ignore his written stipulation to the Florida Court, and (5) not attend the Florida proceedings, of which he had notice. After the Florida Final Divorce Judgment, he had the opportunity to address “defects” by appealing in Florida. He did not appeal, and his time limit for an appeal has passed. [138] The Nova Scotia Court of Appeal does not, under Palmer, conduct a de facto appeal from the Florida Circuit Court, to determine the “credibility” of the Florida Divorce Judgment. [139] As to Palmer’s second and fourth criteria, Mr. Armoyan submits that the Florida Court’s documents, particularly the Final Divorce order of October 26, 2012, are not relevant and could not reasonably have affected the result of the forum non conveniens ruling that is under appeal. [140] Again I disagree. Throughout these reasons, I address how the Florida Divorce Judgment affects the application of factors that govern the issues in this appeal (see paras 26, 31, 151-52, 159, 246-51, 268, 280, 282-89, 301(a), 332-55). [141] As one example, the Florida Circuit Court’s Order of October 26, 2012 states that Mr. and Ms. Armoyan are no longer married. Section 22(1) of the Divorce Act says: A divorce granted ... pursuant to a law of a country or subdivision of a country other than Canada by a tribunal or other authority having jurisdiction to do so shall be recognized for all purposes of determining the marital status in Canada of any person, if either former spouse was ordinarily resident in that country or subdivision for at least one year immediately preceding the commencement of proceedings for the divorce. [Emphasis added] As I will discuss later (paras 215, 244-45) clearly Ms. Armoyan was ordinarily resident in Florida for at least one year before October 20, 2009 when she filed her Florida Petition. So, under the Divorce Act, the October 26, 2012 Florida Divorce Judgment “shall be recognized for all purposes of determining the marital status in Canada” of both Mr. and Ms. Armoyan. “[A]ll purposes” includes this appeal and any future proceeding in the Family Division. Can a Nova Scotia court expect to conduct a “divorce” trial for unmarried persons? Mr. Armoyan suggests that the Court of Appeal should exclude the evidence of the Florida Divorce Judgment and treat their current unmarried state as out of sight-out of mind. Then this Court, in some enchanted state of sans souci, would remit the proceeding for the Family Division to divorce them all over again. In my view, that suggested suspension of disbelief would only further complicate, delay and add to the expense of what Justice Campbell rightly described as a “quagmire of procedural issues” (above, para 106). [142] The Florida Divorce Judgment engages the criteria of convenience, multiplicity, decisional conflict, enforcement, and the fair and efficient working of the legal system, that pertain to the issues under appeal as prescribed by the Court Jurisdiction and Proceedings Transfer Act, S.N.S. 2003, c. 2, s. 12 and the principles of forum non conveniens. (c) Admissible Form of the Evidence [143] Mr. Armoyan submits that the Florida Order of October 26, 2012 is not in admissible form. His counsel made three objections: [144] First: Mr. Armoyan moved to strike all but the first sentence of both paragraphs 7 and 8 of Ms. Armoyan’s tendered affidavit (above, para 128). His brief cites the decision of Justice Davison in Waverley (Village Commissioners) et al. v. Nova Scotia (Minister of Municipal Affairs) et al. (1993), 123 N.S.R. (2d) 46 (S.C.), and submits that the impugned sentences “provide submissions or pleas and not evidence and should therefore be struck”. In Waverley, pages 52-3, Justice Davison said: [20] It would be helpful to segregate principles which are apparent from consideration of the foregoing authorities and I would enumerate these principles as follows: 1. Affidavits should be confined to facts. There is no place in affidavits for speculation or inadmissible material. An affidavit should not take on the flavour of a plea or a summation. Justice Davison’s comment later was embodied in the new Civil Procedure Rule 39.04(2)(a): 39.04(2) A judge must strike a part of an affidavit containing either of the following: (a) information that is not admissible, such as an irrelevant statement or a submission or plea. [145] I reject Mr. Armoyan’s challenge to the impugned words from Ms. Armoyan’s affidavit. [146] In Canadian Imperial Bank of Commerce v. CNH Capital Ltd., 2013 NSCA 35, this Court said the following about para 20, principle #1, from Waverley and Rule 39.04(2)(a): [82] I agree with Justice Davison’s statement from Waverley. But I disagree that the challenged statements in the affidavits of Messrs. Bayne and Tucci are a “submission” or “plea”. What is objectionable under Rule 39.04(2)(a) is a conclusory statement that embodies or assumes a point of law. Whether, how, and the degree to which Ford Credit’s identity was important to the Bank are questions of fact .... [147] The impugned statements from Ms. Armoyan’s paras 7 and 8 are factual. They may well be contested facts. But they do not embody or assume points of law. • There does exist a Florida Divorce Judgment that, on its face, says (1) the Armoyans’ marriage is dissolved, and (2) the Marital Agreement is void for fraud. I take Ms. Armoyan’s affidavit as merely astatement of this fact, not as an opinion on the law of divorce or fraud. • Whether the litigation was “protracted” is factual. • Ms. Armoyan’s expenses and legal fees, and the state of her financial resources are factual. • Ms. Armoyan’s view that she and her children has suffered “unfairness”, “chaos” and “hardship” is factual. I agree that one connotation of the word “unfairness” may embody a legal standard. But another connotation is that “unfairness” just asserts Ms. Armoyan’s subjective view of the facts. I will treat the word as having only the second connotation. Every day, in family courts across the country, litigating spouses use words like “unfairness” and “hardship” to describe how they feel about their circumstances. It would be nonsensical for an appellate court to rule, as a binding precedent, that such words may not be uttered from a witness stand. [148] Second: The Florida Divorce Judgment of October 26, 2012 reserved to the Circuit Court the jurisdiction to vary its terms respecting division of assets: 49. As this Court cannot address the value of any of those interests, as discovery has been stymied by the Husband, this Court specifically reserves jurisdiction to address the value of the Husband’s interest in Geovex (However, any sale proceeds of Geovex became non-business assets when it was converted to cash or other forms as to investment.), ARMCO, and any subsidiaries or affiliates of the same, stock interests in either of said entities or entities not further discovered (based upon the Husband’s failure to file financial information with this Court), partnership interests, and LLC interests should the Wife desire to pursue the valuation of those entities for the purposes of her equitable distribution. [149] According to Mr. Armoyan, the Judgment is not “final”. Mr. Armoyan submits that this Court should not admit into evidence a Judgment that is not “final”. [150] To recapitulate - (a) As a condition of the Circuit Court’s Order that excused his disclosure, on April 11, 2011 Mr. Armoyan filed his signed, written stipulation with the Florida Circuit Court that he could satisfy the Florida Court’s reasonable support orders for Ms. Armoyan and the children, and that his stipulation governed any Florida contempt proceedings should he fail to satisfy those support orders (above, paras 47-53). (b) On the basis of Mr. Armoyan’s stipulation, the Florida Circuit Court issued the Interim Support Order of August 11, 2011 directing that Mr. Armoyan pay support, retroactive to the separation and prospective, for Ms. Armoyan and the children (above, para 54). (c) Mr. Armoyan then defaulted in his support obligations under the Interim Support Order, and has ignored all contempt and other proceedings to enforce the Interim Support Order (above, paras 57-67). (d) As consideration for his breached stipulation, Mr. Armoyan had been excused from disclosure. Because he had “stymied” disclosure, the Florida Court did not have the information to order a division of property. So the Florida Divorce Judgment, para 49, retained jurisdiction over that matter. (e) Now Mr. Armoyan submits that the Florida Court’s failure to deal finally with division of assets should exclude the Florida Divorce Judgment’s treatment of his support obligations from the view of the Nova Scotia courts. The combination of his non-compliant disclosure and his breached stipulation would mean that the Florida Court’s Judgment, on the current state of his breached support obligations, would conveniently disappear from the view of the Nova Scotia Courts. Disingenuous is a polite adjective for this submission. [151] As I will discuss in the analysis (paras 276-82), the division of matrimonial assets - i.e. the issue where Mr. Armoyan’s non-disclosure “stymied” the Florida Court - should be for the Nova Scotia courts under the forum non conveniens principles. One reason is that Mr. Armoyan’s delinquent disclosure impaired the Florida Court’s capacity to determine the extent of his assets. [152] The Florida Court’s Orders on the dissolution of marriage, custody and parenting, child support and spousal support are fixed, quantified, and display no basis to exclude the admission of the Florida Divorce Judgment. Any support obligation, domestic of foreign, may be varied with a material change in circumstances. That potential for variation does not exclude the support judgment from admission into evidence. The Interjurisdictional Support Orders Act, S.N.S. 2002, c. 9, as amended, states that foreign support orders, including interim support orders, from a reciprocating state, which includes Florida, are enforceable for both arrears and future obligations (discussed below, paras 299-302). Part IV of that Act permits variation of a registered order. As Nova Scotia law regards these support orders as sufficient to attain legal status, clearly they are admissible in court, despite the potential for variation with a material change of circumstances. [153] Third: Mr. Armoyan’s next objection is this. The Florida Divorce Order of October 26, 2012 referred to exhibits. The Decision that is attached to Ms. Armoyan’s affidavit, for the fresh evidence motion, does not attach those exhibits. Mr. Armoyan says the Decision is incomplete and therefore inadmissible. [154] At this Court’s hearing on June 19, 2013, Ms. Armoyan’s counsel, Ms. McGinty, had in the courtroom a certified copy of the Florida Order of October 26, 2012, complete with exhibits. The document was in a sealed envelope. Ms. Armoyan’s counsel offered the sealed package to the Court. Mr. Armoyan’s counsel disagreed that this document could be admitted. [155] Ms. McGinty explained why the Order with exhibits was in a sealed envelope, rather than attached to Ms. Armoyan’s affidavit. The reason was that the Circuit Court’s Order attached as an exhibit certain items that Mr. Armoyan had claimed were subject to privilege. The Florida Court eventually rejected Mr. Armoyan’s privilege claim based on the Court’s explicit finding of fraud by Mr. Armoyan (above, paras 31 and 79 - see paras 20-33 of the Florida Divorce Judgment). But the Florida Court’s rejection came after Mr. Armoyan had (with a stay of proceedings) stalled the Florida divorce for over a year while he pursued his motion to disqualify Ms. Armoyan’s Florida counsel, for viewing the documents (above, paras 27-33). Mr. Armoyan threatened to follow the same course in Nova Scotia. Ms. Armoyan’s Nova Scotia counsel chose not to risk another substantial delay in this divorce proceeding while she fended off a Nova Scotia disqualification motion. So Ms. McGinty prudently kept the Florida Court’s Order of October 26, 2012, with exhibits attached, in a sealed envelope, and included the Order minus exhibits in Ms. Armoyan’s affidavit for the fresh evidence motion. [156] The Florida Divorce Judgment of October 26, 2012, attached to Ms. Armoyan’s affidavit of March 6, 2013, comprises Judge Martz’ written and signed reasons and bears the stamped certificate of the State of Florida, Palm Beach County. It is an admissible copy of the text of the original decision. The exhibits are available elsewhere in the Appeal Books, or are explained fully in the text of the Decision. [157] If Mr. Armoyan preferred that the exhibits be attached, he should have acceded to Ms. McGinty’s offer to tender the contents of the sealed envelope. I reject Mr. Armoyan’s objection. (d) Conclusion - Fresh Evidence [158] The concurrent proceedings in Florida and Nova Scotia have involved instances in both jurisdictions where uncertainty about past or upcoming events in one jurisdiction has delayed or confused events in the other. There have been inconsistent submissions or assumptions between the two jurisdictions. [159] One such inconsistency involves the effect on Mr. Armoyan’s support obligations of his movement of assets offshore. It is a cognitive challenge to reconcile his positions to the two courts. On January 13, 2011, Justice Campbell denied Ms. Armoyan’s motion for an injunction to restrain Mr. Armoyan’s conveyance of the matrimonial home to his mother. Mr. Armoyan had testified that he intended to move proceeds of the sale to the Middle East and elsewhere. Accepting Mr. Armoyan’s position, the judge said: ... And I see no reason to draw an inference that his reason or motive for moving a large sum of money to the Middle East was to deprive his wife of the opportunity to collect on any judgement [sic] that she might get. Then on September 20, 2011, Justice Campbell dismissed Ms. Armoyan’s motion for an injunction to restrain Mr. Armoyan’s movement of funds to the Middle East. The judge characterized Mr. Armoyan’s explanation for transferring $20 million to the Middle East as: Lebanon and Syria are “emerging markets” and “the market is not good in this country”, i.e. Canada (above, para 106). Meanwhile, according to the Florida Circuit Court’s Divorce Judgment of October 26, 2012 (above, para 79): 32. The Husband deliberately misled this Court regarding his ability to abide by its order for support of the Wife and children. He stated he could not remove money from Syria, while he had sufficient funds in Canada to honor the orders, according to sworn testimony of his broker Paul Clarke, provided in October 2011. [160] As I will discuss, comparative fairness and the efficient working of the legal system are the heart of the forum non conveniens principles at common law and under the Court Jurisdiction and Proceedings Transfer Act. To engage in a proper comparison of fairness and efficiency, it is essential that this Court have the fullest appreciation of the events that have transpired in the courts of both Florida and Nova Scotia. [161] In my view, Ms. Armoyan’s tendered fresh evidence, her affidavit of March 6, 2013 complete with all its exhibits, satisfies Palmer’s criteria, and should be admitted into evidence. [162] Mr. Armoyan’s affidavit of May 29, 2013 also is admissible as contextual rebuttal to some of the statements in Ms. Armoyan’s affidavit. 6. Second Issue - The Adjournment Appeal [163] The introductory facts are set out earlier (paras 113-14). I will elaborate. [164] The jurisdiction/forum non conveniens hearing had been scheduled to resume on February 28, 2012 before Justice Campbell. On February 20, 2012, Ms. Armoyan’s counsel wrote to the judge, copied to Mr. Armoyan’s counsel, to request an adjournment. The letter (above, para 113) cited four reasons, including Ms. McGinty’s personal circumstances. Those circumstances were that Ms. McGinty’s husband had been diagnosed with terminal cancer, and Ms. McGinty had to tend to his care. [165] On February 22, 2012, Justice Campbell convened in chambers, with Mr. Armoyan’s counsel and Ms. McGinty’s associate, Ms. Walker, for Ms. Armoyan. Justice Campbell opened the hearing by stating: This matter involves Vrege Armoyan and Lisa Armoyan, and it’s a motion by Ms. McGinty to adjourn the hearing date set for four days next week. Ms. McGinty has asked for that adjournment for - based on a number of factors. We could spend our time on each of those, but I think to cut to the chase, I’m not awfully - I’m not terribly concerned about the grounds one, two, and three, but I am very concerned about ground number four. And Mr. Kelly has replied by echoing his concern, and indicating that there could be serious problems for his client if the adjournment is granted. So, I would frankly like to focus on how we might grant an adjournment that would give - pay attention to Ms. McGinty’s personal circumstances, ... The second and third grounds, that the judge was “not terribly concerned about”, included Mr. Armoyan’s cessation of support payments in February and the Florida Court’s anti-suit injunction (above, para 73), issued from the bench on February 14, 2012 against Mr. Armoyan’s pursuit of the Nova Scotia proceeding. [166] On February 22, 2012, Mr. Armoyan’s counsel requested that, as a condition of any adjournment, Ms. Armoyan be restrained from advancing her proceeding in Florida. Justice Campbell, Ms. Walker and Mr. Armoyan’s counsel, Mr. Kelly, then had the following exchange: MS. WALKER: My concerns, My Lord, is that from speaking with Ms. McGinty at the lunch break is that if there are going to be - if that condition is going to be attached to the adjournment, that she would be withdrawing the adjournment request. So I would have to speak further with Ms. McGinty. THE COURT: I don’t know if she can withdraw it now that she’s made it. And I don’t mean to be trying to – MR. KELLY: It can only be withdrawn by -- with my consent or order of the Court, if -- a motion, according to the new rules. THE COURT: I think that’s right. You’re due in another Court, but we’ve advised that other Court that you’re tied up here, so perhaps -- can you reach her by phone immediately? MS. WALKER: Yeah, I can do my best to, My Lord. The Court adjourned while Ms. Walker telephoned Ms. McGinty. The Court then resumed: THE COURT: Thank you, please be seated. Ms. Walker, is there anything to report? MS. WALKER: My Lord, Ms. McGinty wishes to speak to the matter. She would prefer to do that on Friday if that’s at all possible. The matter was then adjourned to Friday, February 24, 2012. Before leaving the courtroom on February 22, the judge said: THE COURT: Well, I think that it’s fair to say, Ms. Walker, that you could say to Ms. McGinty that I’m doing this for her to -- because you’re making -- you’re sending a message loud and clear that she doesn’t want me to go where I’m leaning without, at least, the opportunity to address me or to further instruct you to address me on her behalf. So I’m bowing to that request by adjourning this until Friday. But I don’t mind telling you that I see that as being a bit of a dilemna for her on the one hand to tell me in a letter that she cannot take part in any litigation at this point in her circumstances, and yet, then to tell me that if the adjournment isn’t on -- if the adjournment includes the conditions Mr. Kelly is seeking, that then suddenly she could in fact be available, and be here for Tuesday. [167] On February 24, 2012, the matter resumed, with Ms. Walker appearing for Ms. Armoyan. Ms. Walker tendered an affidavit of Ms. Armoyan, sworn the day before. Mr. Kelly, on behalf of Mr. Armoyan, objected, and the following ensued: MR. KELLY: Okay. But My Lord, I mean, it should have been filed with the motion. I mean – THE COURT: Well, if she’s going to use it for today, I’m not going to allow that, because I’m not going to read it. But if you have no objection to it, that’s a different thing, but -- I take Mr. Kelly’s point that you can’t expect me to rely on a document that’s filed this late in the proceeding, Ms. Walker. But is that your purpose, is to have me read it and rely? MS. WALKER: It’s an affidavit that simply sets out some conditions that Ms. Armoyan is currently facing, her financial circumstances in Florida. And so we are requesting that the Court consider this as part of this motion. THE COURT: Well, I’ll give Mr. Kelly time to read it, and then I’ll hear from him. So I’ll take a short break. After a one minute break, the Court resumed: THE COURT: Thank you, please be seated. Mr. Kelly, you’ve read the affidavit? MR. KELLY: I read this affidavit, My Lord, and quite frankly, we would want her respond and also cross-examined and at a minimal, we want an opportunity to review with my client and provide a response. THE COURT: All right, well in that – MR. KELLY: I mean, he deals -- I mean – THE COURT: Well, I’ll just take your word for it. I don’t – MR. KELLY: --- it’s Florida, Florida, Florida. THE COURT: You don’t need to explain. I hear your position, and it is late file, so I don’t feel that I can take it into account in today’s -- and if I were to give you an adjournment to file a response, we’d miss dealing with the adjournment request, and we’d be into next week, so I’m going to just press on today. MR. KELLY: Thank you, My Lord. [168] It is worth mentioning, at this point, that Mr. Armoyan filed no affidavit and presented no evidence for the motion, nor to support his request for the condition that restrained Ms. Armoyan’s Florida proceeding. [169] Still on February 24, 2012, Justice Campbell gave an oral decision respecting the adjournment and Mr. Armoyan’s request for the condition. As to the adjournment, the judge said: ... I have been made aware informally that the circumstances referred to are that a person very close to Ms. McGinty is very ill, and is in very serious condition, and requires her attention. With or without the consent of the counsel for Mr. Armoyan, I would have concluded that those circumstances will justify the adjournment. ... not only am I satisfied that Ms. McGinty is, to use her words, “Facing an impossibility” to engage in litigation at the present time, I add to that reality the fact that this is a very long-standing and complicated case involving large amounts of documentation, affidavits, court orders, previous proceedings, anticipated further proceedings, such that it would be also impossible for a lawyer to become fully engaged in the file in order to take over the case for the coming Tuesday as of this announcement being made on February 20th, as to Ms. McGinty’s availability. So, the prejudice to Ms. Armoyan is that she would effectively be without counsel, or at the very least, without informed counsel. Or, if it were Ms. McGinty who attempted to do the job, she would be with a counsel who is impaired by a personal circumstance that would not allow her to provide her ususal good service. So, the adjournment is granted. The next question is whether or not there should be conditions attached to that. [170] The judge decided to attach conditions. He said: I have concluded that it is important to attempt to maintain the status quo of these competing proceedings, and that the adjournment of the jurisdiction motion here at the request of Ms. Armoyan should not be allowed to improve her position in this competing jurisdictional litigation. And for that reason, I am prepared to grant the order as presented in draft form by Mr. Kelly with one additional paragraph being added. ... That will be an order that effectively makes it clear that this order does not, in any way, prejudice Ms. Armoyan from attempting to enforce any Florida order presently in existence as of today’s date. [171] Justice Campbell’s Order of March 13, 2012 is quoted above (para 114). (a) Standard of Review [172] In Caterpillar Inc. v. Secunda Marine Services Ltd., 2010 NSCA 105, this Court described the appellate standard of review to a judge’s decision whether to adjourn: [5] This court applies a deferential standard to a trial judge’s decision whether to grant or deny an adjournment. In Abbott v. Sharpe, 2007 NSCA 6, ¶ 74, Justice Saunders for the court said: A trial judge’s right to supervise and control the trial includes a wide discretion to grant or refuse adjournments. The exercise of that discretion is owed considerable deference on appeal unless it can be shown that the judge erred in principle or that the judge did not exercise his or her discretion judicially. Webber v. Canada Permanent Trust Co. (1976), 18 N.S.R. (2d) 631 (N.S.C.A.), and Moore v. Economical Mutual Insurance Co. [1999] N.S.J. No. 250 (N.S.C.A.) In Moore, cited in the passage from Abbott, Justice Cromwell said: 33 The decision to grant or refuse an adjournment is within the discretion of the presiding judge. It is a discretion which the judge is particularly well placed to exercise. An appellate court should not substitute its judgment for that of the presiding judge but should limit its review to determining whether the judge applied a wrong principle or the decision gave rise to an injustice. To similar effect: Innocente v. Canada (Attorney General), 2012 NSCA 36, paras 27-29. In Éditions Écosociété Inc. v. Banro Corp., [2012] 1 S.C.R. 636, at para 41, Justice LeBel defined: ... the principle of deference to discretionary decisions: an appeal court should intervene only if the motion judge erred in principle, misapprehended or failed to take account of material evidence, or reached an unreasonable decision. ... [173] In this case, Justice Campbell held that the adjournment should be granted, apart from any issue related to conditions. He ruled, correctly in my view: With or without the consent of the counsel for Mr. Armoyan, I would have concluded that those circumstances [related to Ms. Armoyan’s counsel] will justify the adjournment. ... So, the adjournment is granted. The next question is whether or not there should be conditions attached to that. [174] The judge then considered, as a stand alone issue, whether to add a condition that restrained Ms. Armoyan from proceeding in Florida. [175] Conditions for adjournments are, of course, subject to appellate review for error of principle. For instance, in Moore v. Darlington, 2012 NSCA 68, this Court said, as to a judge’s condition for an adjournment: [55] If the application judge were prepared to grant the adjournment on the condition that Mr. Moore would not be permitted to file any further material, it was incumbent on her to explain why such a restriction was necessary to balance the interests of the parties. If such a condition were going to be imposed the test as set out in Rule 5.11 (supra) had to be addressed. It was not. Rule 5.11 provides ... [56] The judge took none of those factors into consideration in imposing the condition on Mr. Moore. Again, in failing to do so she erred in principle. ... [58] There was no evidentiary basis upon which the judge could have exercised her discretion in attaching such a condition to the granting of an adjournment or, alternatively, if there were merit to imposing the condition, it is not apparent from the record or her reasons. [59] I am satisfied the application judge erred in principle in failing to balance the respective interest of the parties in her consideration of the adjournment request. See also Caterpillar, para 16. [176] The question on this appeal is whether the judge committed an appealable error, under this Court’s standard of review, by attaching Condition #2 that restrained Ms. Armoyan’s advancement of the Florida proceeding. (b) The Effect of Condition #2 [177] Condition #2 says that “the Respondent, Lisa Armoyan, shall ensure that the current status of the proceedings in the State of Florida ... are maintained and not advanced in any manner whatsoever from February 24, 2012 until completion of the adjourned Hearing and Decision of this Honourable Court”, except to enforce orders issued before February 24, 2012. This would restrain Ms. Armoyan from advancing her submission at the already scheduled Florida hearing (to be heard April 4, 2012) on Mr. Armoyan’s outstanding motion to challenge the Florida Court’s jurisdiction and forum conveniens status. Justice Campbell’s condition applied until the “Decision of this Honourable Court” on the Nova Scotia jurisdiction/forum non conveniens motion. So the condition, if implemented, ensured that Nova Scotia’s ruling on forum non conveniens would predate any Florida ruling on forum non conveniens. [178] The transcript of February 24, 2012 shows the judge’s reasoning. He cited no authority. Of the Florida anti‑suit injunction that had been issued orally on February 14, 2012 (written version of February 29, 2012, quoted above, para 73), Justice Campbell said: But I am concerned about the order that came out of Florida. I had it for last day, but at the very last minute, and only skim‑read it. I had the chance in the meantime to read it more carefully. There is obviously quite a tug‑of‑war going on in terms of whether the Florida Court should prevail, whether I should accept the Court's request that I refrain from taking further part in this case. And I think I referred to it as a "chicken and egg" question when ‑ on one other occasion, I was quoted as using that vernacular phrase. But we are kind of going in circles with this case. Justice Campbell explained his reason for the condition as ... Ms. Armoyan should not be allowed to improve her position in this competing jurisdictional litigation. And for that reason, I am prepared to grant the order as presented in draft form by Mr. Kelly with one additional paragraph being added. ... [179] Justice Campbell made it clear that he would grant the adjournment whether or not there were conditions (above, paras 169-70). So the restraint on advancement of the Florida proceedings was not a sine qua non of the adjournment. Rather, the restraint effectively was an interim injunction that accompanied the adjournment. It doesn’t matter that the restraint is styled self-effacingly as a mere “condition” of adjournment. A wolf in sheep’s clothing has the same teeth. [180] In my view, the judge erred in principle, procedurally and substantively. (c) Procedural Error [181] A request for an interim or interlocutory injunction is to be made on written notice and supported by affidavit and an undertaking. These are to be in writing, filed and served within prescribed time limits, unless the motion is made ex parte for urgency as prescribed in the Rules. Civil Procedure Rules 22.02, 22.15, 22.17, 23.01(2), 23.03, 23.11, 41.03, 41.04, 41.06 and 59.02(2) [182] Mr. Armoyan did not file a notice of motion or an affidavit or undertaking. Yet he obtained what in substance was an interim or interlocutory injunction. [183] The judge considered the unsworn assertions from counsel for Mr. Armoyan, who filed no motion or supporting evidence. Yet the judge refused to admit Ms. Armoyan’s affidavit that would have spoken to her circumstances, because it was tendered late (above, para 167). [184] When it became apparent that the restraint of Florida proceedings was on the table, Ms. Armoyan sought to withdraw her request for an adjournment. Mr. Armoyan would not consent, and the judge declined to allow the withdrawal (above, para 166). [185] The judge disregarded Rules non-compliance by Mr. Armoyan while enforcing strict Rules compliance by Ms. Armoyan. [186] As a result, because her lawyer’s husband happened to suffer a health crisis, Ms. Armoyan suddenly found herself effectively enjoined from advancing her Florida divorce proceeding that she had initiated in 2009, over a year before Mr. Armoyan filed his current Nova Scotia petition. This result occurred: (1) without a notice of motion or supporting affidavit from Mr. Armoyan; (2) without consideration by the Court of the prejudice to Ms. Armoyan from the restraint in Florida; and (3) without consideration by the Court of the extensive delays - stays and adjournments - that Mr. Armoyan had obtained from the Florida Courts during the litigation of his spurious challenge under the Hague Convention and failed motion to disqualify Ms. Armoyan’s counsel. The judge treated the matter as a race to the courthouse. By restraining Ms. Armoyan’s advancement in Florida until after the Nova Scotia “Decision”, effectively he ordered that Nova Scotia would cross the finish line first. [187] In my view, this was an error of principle in the application of the Civil Procedure Rules, resulted in a manifest injustice, as described by Justice Cromwell in Moore v. Economical, and was an unreasonable decision, as described by Justice LeBel in Banro. (d) Substantive Error [188] The Supreme Court of Canada has prescribed the principles that govern interim injunctions generally and, in particular, restraints against the advancement of foreign proceedings. [189] In RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, at page 324, Justices Sopinka and Cory stated the well-known tests that govern interim injunctions. The party seeking the order must show a serious question to be tried, and that he will suffer irreparable harm if the relief is denied. The third test involves “an assessment of the balance of inconvenience”. The Nova Scotia Court of Appeal has applied these tests in cases too numerous to cite. [190] The judge did not address Ms. Armoyan’s inconvenience, from the restraint on Florida proceedings, as being pertinent to any balance between the two parties. [191] In Amchem Products Inc. v. British Columbia (Workers’ Compensation Board), [1993] 1 S.C.R. 897, Justice Sopinka for the Court discussed the principles that govern injunctions against the advancement of a foreign proceeding, when two jurisdictions conduct parallel proceedings: The issue to be determined is on what principles should a court exercise its discretion to grant an anti-suit injunction and how these principles apply in this appeal. [p. 911] ... The courts have developed two forms of remedy to control the choice of forum by the parties. The first and more conventional device is a stay of proceedings. This enables the court of the forum selected by the plaintiff (the domestic forum) to stay the action at the request of the defendant if persuaded that the case should be tried elsewhere. The second is the anti-suit injunction, a more aggressive remedy, which may be granted by the domestic court at the request of a defendant or defendants, actual or potential, in a foreign suit. [p. 912] ... ... Courts of other jurisdictions do occasionally accept jurisdiction over cases that do not satisfy the basic requirements of the forum non conveniens test. Comity is not universally respected. In some cases a serious injustice will be occasioned as a result of the failure of a foreign court to decline jurisdiction. It is only in such circumstances that a court should entertain an application for an anti-suit injunction. This then indicates the general tenor of the principles that underlie the granting of this form of relief. [pp. 914-15] ... In coming to his conclusion on the law in SNI [SNI Aérospatiale v. Lee Kui Jak, [1987] 3 All E.R. 510 (P.C.)], Lord Goff considered the long history of English law as well as American and Scottish authorities. He stated, at p. 519, that the following basic principles were beyond dispute: First, the jurisdiction is to be exercised when the ‘ends of justice’ require it. ... Second, where the court decides to grant an injunction restraining proceedings in a foreign court, its order is directed not against the foreign court but against the parties so proceeding or threatening to proceed. ... Third, it follows that an injunction will only be issued restraining a party who is amenable to the jurisdiction of the court against whom an injunction will be an effective remedy. ... Fourth, it has been emphasised on many occasions that, since such an order indirectly affects the foreign court, the jurisdiction is one which must be exercised with caution. ... [Citations omitted] In considering the above principles, Lord Goff set out the following test (SNI, supra, at p. 522): In the opinion of their Lordships, in a case such as the present where a remedy for a particular wrong is available both in the English (or, as here, the Brunei) court and in a foreign court, the English (or Brunei) court will, generally speaking, only restrain the plaintiff from pursuing proceedings in the foreign court if such pursuit would be vexatious or oppressive. This presupposes that, as a general rule, the English or Brunei court must conclude that it provides the natural forum for the trial of the action, and further, since the court is concerned with the ends of justice, that account must be taken not only of injustice to the defendant if the plaintiff is allowed to pursue the foreign proceedings, but also of injustice to the plaintiff if he is not allowed to do so. So, as a general rule, the court will not grant an injunction if, by doing so, it will deprive the plaintiff of advantages in the foreign forum of which it would be unjust to deprive him. [pp. 924-25] ... In my view, the principles outlined in SNI should be the foundation for the test applied in our courts. [p. 930] ... In order to resort to this special remedy consonant with the principles of comity, it is preferable that the decision of the foreign court not be pre-empted until a proceeding has been launched in that court and the applicant for an injunction in the domestic court has sought from the foreign court a stay or other termination of the foreign proceedings and failed. [p. 931] ... The first step in applying the SNI analysis is to determine whether the domestic forum is the natural forum, that is the forum that on the basis of relevant factors has the closest connection with the action and the parties. I would modify this slightly to conform with the test relating to forum non conveniens. ... If, applying the principles relating to forum non conveniens outlined above, the foreign court could reasonably have concluded that there was no alternative forum that was clearly more appropriate, the domestic court should respect that decision and the application should be dismissed. When there is a genuine disagreement between the courts of our country and another, the courts of this country should not arrogate to themselves the decision for both jurisdictions. In most cases it will appear from the decision of the foreign court whether it acted on principles similar to those that obtain here, but, if not, then the domestic court must consider whether the result is consistent with those principles. In a case in which the domestic court concludes that the foreign court assumed jurisdiction on a basis that is inconsistent with principles relating to forum non conveniens and that the foreign court’s conclusion could not reasonably have been reached had it applied those principles, it must go then to the second step of the SNI test. I prefer the initial formulation of that step without reference to the terms “oppressive and vexatious”. At p. 522, Lord Goff states: This presupposes that, as a general rule, the English or Brunei court must conclude that it provides the natural forum for the trial of the action, and further, since the court is concerned with the ends of justice, that account must be taken not only of injustice to the defendant if the plaintiff is allowed to pursue the foreign proceedings, but also of injustice to the plaintiff if he is not allowed to do so. So, as a general rule, the court will not grant an injunction if, by doing so, it will deprive the plaintiff of advantages in the foreign forum of which it would be unjust to deprive him. [Justice Sopinka’s underlining] [p. 931-32] ... When will it be unjust to deprive the plaintiff in the foreign proceeding of some personal or juridical advantage that is available in that forum? I have already stated that the importance of the loss of advantage cannot be assessed in isolation. The loss of juridical or other advantage must be considered in the context of the other factors. The appropriate inquiry is whether it is unjust to deprive the party seeking to litigate in the foreign jurisdiction of a judicial or other advantage, having regard to the extent that the party and the facts are connected to that forum based on the factors which I have already discussed. A party can have no reasonable expectation of advantages available in a jurisdiction with which the party and the subject matter of the litigation has little or no connection. Any loss of advantage to the foreign plaintiff must be weighed as against the loss of advantage, if any, to the defendant in the foreign jurisdiction if the action is tried there rather than in the domestic forum. [p. 933] ... The result of the application of these principles is that when a foreign court assumes jurisdiction on a basis that generally conforms to our rule of private international law relating to the forum non conveniens, that decision will be respected and a Canadian court will not purport to make the decision for the foreign court. The policy of our courts with respect to comity demands no less. ... [p. 934] With due respect to the trial judge, the principle of comity to which I have referred does not require that the decision of the foreign court be based on the doctrine of forum non conveniens. Many states in the United States and other countries do not apply that principle. Indeed, until comparatively recent times, it was not applied in England. Does this mean that a decision of the courts of one of these countries which, in the result, is consistent with the application of our rules would not be entitled to respect? The response must be in the negative. It is the result of the decision when measured against our principles that is important and not necessarily the reasoning that leads to that decision. Moreover, while the Texas courts do not apply a forum non conveniens test as such, they are required to comply with Section 1 of the Fourteenth Amendment to the Constitution of the United States which operates to limit the power of a state to assert in personam jurisdiction over a non-resident defendant. ... In the instant case, the Texas court assumed jurisdiction on the basis of the fact that some of the respondents are resident in that state and carry on business or some are not resident but carry on business in that state. The finding of sufficient contact with Texas is supported by the evidence and hence, the jurisdiction in Texas was asserted according to the Due Process Clause. ... [pp. 937-38] ... In the circumstances, this action on the part of the Texas court was not a demonstration of disrespect for the British Columbia proceedings so as to disentitle the decision of the Texas court to the ordinary respect which comity affords. ... [p. 939] ... I would allow the appeal, set aside the orders below and dismiss the application for an injunction. [p. 940] [Italics added] [192] In my view, Amchem’s principles apply to this restraint on the advancement of the Florida proceeding. Justice Campbell neither referred to Amchem nor considered its criteria. Those criteria, from the passages quoted and italicized above, include the following. [193] First: Amchem (pp. 930-31) says that the domestic court should not restrain the advancement of the foreign proceeding before the foreign court has determined the forum non conveniens issue, and has decided to accept jurisdiction. The Florida Circuit Court was scheduled to determine the forum non conveniens issue on April 4, 2012. Justice Campbell’s ruling of February 24, 2012, and Order of March 13, 2012, attempted to restrain Ms. Armoyan from advancing her position on that issue in the Florida Court. This is clear from the judge’s later reasons of September 14, 2012 on the Forum Non Conveniens Appeal: [83] ... On April 4, 2012 the Florida Court determined that it would take jurisdiction over all of the issues before it including the validity of the marriage contract and it dismissed the Petitioner’s [Mr. Armoyan’s] motion to dismiss the Florida proceeding for lack of subject matter jurisdiction and forum non conveniens. This development was expected to be avoided by the condition which I added to allowing the Respondent’s request to adjourn the February 2012 dates to August 2012. Therefore, the prejudice to the Petitioner envisaged by his counsel actually materialized despite the adjournment condition which I imposed to protect against prejudice. Amchem’s principles of comity do not contemplate this pre-emptive strike against the foreign court’s determination whether to accept jurisdiction. [194] Justice Campbell said that on April 4, 2012, the Florida Court “dismissed the Petitioner’s [Mr. Armoyan’s] motion” which was the “development ... expected to be avoided by the condition which I added”. In my view, whether Mr. Armoyan’s Florida jurisdictional motion would be granted or dismissed was for the Florida Court, and is not the Nova Scotia Court’s affair. Nothing in Amchem directs the domestic court to put its thumb on the scales of the foreign court’s jurisdictional analysis. [195] Second: Amchem (pp. 914-15) says that, even when the foreign court decides to accept jurisdiction as the convenient forum, the domestic court should not restrain the advancement of the foreign proceeding unless “serious injustice” would result from the foreign court’s exercise of jurisdiction. See also: Janet Walker, Castel & Walker - Canadian Conflict of Laws, 6th ed, looseleaf, (LexisNexis Canada: Markham, Ontario, 2005), [“Castel”], para 13.4, page 13-18; Stephen G. A. Pitel & Nicholas S. Rafferty, Conflict of Laws, (Toronto: Irwin Law Inc., 2010) [“Pitel”], pages 146-7. Justice Campbell (above, para 193) identified the Florida Court’s ruling of April 4, 2012 on the jurisdiction/forum non conveniens issues as “the prejudice to the Petitioner envisaged by his counsel” which “actually materialized”, and against which Condition #2 was “imposed to protect”. [196] The Florida Court’s ruling of April 4, 2012 was further to Mr. Armoyan’s motion for a ruling that the Florida Court was not the convenient forum. His Notice, titled “Husband’s Motion to Dismiss for Lack of Subject Matter Jurisdiction, Personal Jurisdiction, based on a Forum Selection Clause, and the Forum Non Conveniens Doctrine”, dated November 10, 2009, requested that the Florida Circuit Court “dismiss this case but award him his costs and attorney’s fees”. It is difficult to grasp how a party suffers “serious injustice” just because a court hears that party’s motion. Castel, vol 1, para 11.2 says: It goes without saying that a person who commences a proceeding in a court consents to the jurisdiction of the court to decide the matter. If Mr. Armoyan wished to avoid a Florida hearing on April 4, 2012, he could have withdrawn his motion. He allowed his motion to stand. Instead, at Mr. Armoyan’s request in Nova Scotia, the judge’s Condition #2 sought to restrain Ms. Armoyan’s capacity to respond to Mr. Armoyan’s Florida motion. [197] Third: Amchem (pp. 931-32) says that, if the foreign court’s forum non conveniens ruling accepts jurisdiction, then, under principles of comity, the domestic court should not restrain the advancement of the foreign proceeding if the foreign court “could reasonably have concluded” that its forum was clearly more appropriate, or “[w]hen there is a genuine disagreement between the courts of our country and another”. [198] The Armoyans’ daughters were residents of Florida, with virtually no connection to Nova Scotia (discussed below, paras 269). Mr. Armoyan had defaulted in payment of their court ordered child support. He had given the Florida Court his personal stipulation for the purpose of assisting Florida’s enforcement of the ordered support. Clearly this gave the Florida Courts a “reasonable basis” for activity to protect vulnerable children within its borders. By analogy, even without a stipulation, s. 6(1) of Canada’s Divorce Act makes the territory’s connection to the child a potentially trumping criterion for jurisdiction over the entire divorce proceeding (discussed below, para 307). The Florida Court’s orders of February 14 and 29, 2012 make it clear that the Florida Court’s initiative had been incited by Mr. Armoyan’s defaults. [199] Justice Campbell gave that matter short shrift. He said he was “not terribly concerned” about the Florida Court’s ruling of February 14, 2012, nor the default in child support that prompted it, and he directed the parties to focus their submissions elsewhere (above, para 165). The judge’s pivotal factor, rather than comity, was the “tug-of-war” between “competing” jurisdictions. The judge’s Condition #2 guaranteed that the home team would prevail, by restraining advancement in Florida “until ... Decision of this Honourable Court” on the forum non conveniens issue. (above, paras 114, 178). [200] Fourth: Amchem (pp. 924-25, 931-32) says that the domestic court should not restrain the foreign proceedings before the domestic court has determined that it is the “natural forum”, in Lord Goff’s words, interpreted by Justice Sopinka to mean the convenient forum under the forum non conveniens doctrine. Justice Campbell restrained the advancement of the Florida proceedings without ruling that Nova Scotia was the forum conveniens. [201] This meant that Justice Campbell’s Order, if implemented, would result in a jurisdictional vacuum in both Florida and Nova Scotia until Nova Scotia’s Court eventually issued its forum non conveniens ruling. That ruling came over six months later in September, 2012, and the outcome is now extended by this appeal for another year. Nothing in Amchem contemplates a period of jurisdictional oblivion. [202] The judge had twice declined to enjoin Mr. Armoyan’s conveyance of the matrimonial home to his mother and movement of tens of millions of dollars from Nova Scotia to the Middle East, and had even declined to excuse a procedural defect in a subpoena obtained by Ms. Armoyan, because the Nova Scotia court had not yet ruled on forum non conveniens (above, paras 104-106). Yet the judge restrained Ms. Armoyan’s advancement of her divorce proceeding in Florida notwithstanding Amchem’s requirement that the restraining court first determine that it is the forum conveniens. [203] Fifth: Amchem (pp. 932-33) says that a domestic court’s restraint on the advancement of a foreign proceeding should not deprive a foreign plaintiff of “advantages in the foreign forum of which it would be unjust to deprive him”, and the inquiry has “regard to the extent that the party and the facts are connected” to the foreign forum. The judge made no inquiry of Ms. Armoyan’s connection to Florida, or any Florida advantages, or whether the deprivation of those advantages would be unjust to Ms. Armoyan. [204] In my respectful view, Condition #2 of the Adjournment Order is based on errors of legal principle. (e) Mootness [205] Mr. Armoyan initially submitted that the Adjournment Appeal is moot, and has been overtaken by later events. I respectfully disagree. Justice Campbell’s oral Decision of February 24, 2012 said that, if Ms. Armoyan advanced her Florida divorce in violation of the condition, then, in the later forum non conveniens ruling: I suppose I might also draw some form of adverse inference against Ms. Armoyan if she were to disobey the condition. As I will discuss (para 226), in his forum non conveniens ruling of September 14, 2012, Justice Campbell did draw such an inference or conclusion contrary to Ms. Armoyan, to support his ruling that Nova Scotia was the convenient forum. Clearly, the propriety of condition # 2 is not moot. (f) Conclusion - Adjournment Appeal [206] In my view, Condition #2 to the Supreme Court of Nova Scotia (Family Division)’s Order of March 13, 2012 (above, para 114) derives from reviewable errors of principle and should be excised. On the Adjournment Appeal, I would grant leave to appeal and allow Ms. Armoyan’s appeal, with costs. Later, I will elaborate on costs. 7. Third Issue - Forum Non Conveniens Appeal [207] In Éditions Écosociété Inc. v. Banro Corp., [2012] 1 S.C.R. 636, Justice LeBel for the Court described the appellate standard of review: [41] The application of forum non conveniens is an exercise of discretion reviewable in accordance with the principle of deference to discretionary decisions: an appeal court should intervene only if the motion judge erred in principle, misapprehended or failed to take account of material evidence, or reached an unreasonable decision (see Young v. Tyco International of Canada Ltd., [2008 ONCA 709], at para 27). [208] Justice Campbell issued an initial Decision on September 5, 2012 (2012 NSSC 317) (“Initial Decision”). He ruled that he would accept jurisdiction over all matters before him, except for custody and parenting issues. The exception was because Mr. Armoyan had withdrawn his claims for custody and parenting. In particular, the judge accepted jurisdiction over the dissolution of the marriage, determination of the validity of the Marriage Agreement, registration of the Marriage Agreement in Nova Scotia under the Maintenance and Custody Act, R.S.N.S. 1989, c. 160, as amended, division of assets, spousal support, child support, and litigation respecting the former matrimonial home and its transfer by Mr. Armoyan to his mother. The judge’s Decision of September 5, 2012 did not include detailed reasons. He said: [7] Detailed reasons for my conclusions, above noted, will be provided in a subsequent addendum to this decision. The Florida Court is scheduled to rule today on the merits so I felt compelled to make known my decision before that ruling occurs, even though time does not permit me to offer reasons until later. ... [10] Full reasons and greater direction will come from this Court’s addendum to this decision, jurisdiction for which is hereby reserved. [209] On September 14, 2012, Justice Campbell issued the addendum decision with his full reasons (2012 NSSC 323) (“Addendum Decision”). I will address the reasoning in the Addendum Decision. (a) Jurisdiction Simpliciter - Mr. Armoyan’s “Ordinary Residence” [210] The judge determined that the Nova Scotia Court had jurisdiction simpliciter. Section 3(1) of the Divorce Act says that the Court has jurisdiction “if either spouse has been ordinarily resident in the province for at least one year immediately preceding the commencement of the proceeding”. Mr. Armoyan’s operative petition had been filed in Nova Scotia on December 22, 2010. The judge said: [33] ... I have concluded that the Petitioner was in fact ordinarily resident in Halifax, Nova Scotia, Canada at 855 [855 Marlborough Woods - the former matrimonial home] for at least twelve months preceding the commencement of the Divorce petition on December 22, 2010. ... [37] ... I feel compelled to conclude that during the relevant twelve months, the Petitioner was ordinarily resident at Halifax, Nova Scotia, Canada and that accordingly he has established Jurisdiction simpliciter as required by Section 3(1) of the Divorce Act. [211] I agree that Mr. Armoyan was ordinarily resident in Nova Scotia between December 22, 2009 and December 22, 2010, according to s. 3(1) of the Divorce Act. After October 2009, when Ms. Armoyan told her husband that she wished a divorce, clearly Mr. Armoyan left Florida behind. [212] But Justice Campbell (para 53) continued to say that Mr. Armoyan’s “ordinary residence for all the time that he spent in Florida in 2008 and 2009 was more likely to be in Nova Scotia, Canada than in Florida, USA”. Determining the place of Mr. Armoyan’s ordinary residence before December 22, 2009 was unnecessary to establish the Nova Scotia Court’s jurisdiction simpliciter. Given the judge’s additional comment, I will add the following. [213] As to the facts - In late August 2008, the family moved to Florida. Justice Campbell’s Addendum Decision (quoted above, para 7) recited Mr. Armoyan’s evidence that “placed considerable emphasis on a mutual desire to try a fresh start in Florida as part of a plan to revitalize their marriage”. Mr. Armoyan’s affidavit (para 95) says that, in mid-October 2009, “I thought the Respondent and I were happy”, and (para 100) that, when Ms. Armoyan requested a divorce, “I was very surprised at this because of how our relationship had been going in the weeks leading up to October 22, 2009”. Judge Turnoff’s ruling on Mr. Armoyan’s Hague Convention application (above, paras 23-24) canvassed the facts of the family’s Florida residence, after hearing testimony from Mr. and Ms. Armoyan and their daughters. Judge Turnoff’s findings flesh out the characterization of the Armoyans’ time in Florida as an attempted fresh start to revitalize their marriage, from the start of September 2008 until mid-October 2009. [214] As to the law - In Quigley v. Willmore, 2008 NSCA 33, paras 14-21, this Court’s per curiam decision reviewed the authorities and discussed the meaning of “ordinary residence” under the Divorce Act. Included, in para 21, are the statements: - a person’s ordinary residence is where she is settled-in and maintains her ordinary mode of living with its accessories, relationships and conveniences, or where she lives as one of the inhabitants as opposed to a visitor; - an ordinary residence may be limited in time from the outset or it may be indefinite or unlimited”... This Court (para 18) adopted the following from the Ontario Court of Appeal’s leading decision in MacPherson v. MacPherson (1976), 70 D.L.R. (3d) 564: 15 In my opinion, the arrival of a person in a new locality with the intention of making a home in that locality for an indefinite period makes that person ordinarily resident in that community. In the present matter, while the husband and wife expressed opposing views as to their intention with respect to the establishment of a permanent residence in Nova Scotia, I do not believe that that intention alone can determine the issue of ordinary residence. Mrs. MacPherson left Ontario to reside with her husband and family with the intention of residing in Nova Scotia for an indefinite period of time. Her stated intention of returning to live in Ontario does not detract from the fact that she was ordinarily resident in Nova Scotia for that period which continued until she moved and established her residence in Ontario. [Emphasis added] Castel, para 17.1 (b) says: The expression “ordinarily resident” is not defined in the legislation but it has been interpreted in accordance with the corresponding provisions of the 1968 Divorce Act. It is a question of fact not dependent on citizenship, domicile or even immigration status. The arrival of a person in a new locality with the intention of making a home in that locality for an indefinite period may suffice for ordinary residence. Furthermore, a person may maintain an ordinary residence despite living in other places for periods of time during the year. In determining “ordinary residence” weight may be given to the purpose of the residence requirement in the Divorce Act, which is to demonstrate a sufficient connection between Ontario [the province at play in the authority cited by Castel] and the marriage that is sought to be dissolved. ... [Emphasis added] [215] Justice Campbell emphasized Mr. Armoyan’s intention eventually to return to Canada, his Canadian citizenship and his temporary American visa - not preferred criteria according to the authorities cited above. He discounted the factors favoured by the authorities: Mr. Armoyan’s ordinary mode of living with his family - in Florida - and the connection between the marriage and Florida - i.e. the locale chosen by the couple to revitalize their marriage. [216] It is unnecessary that I rule on Mr. Armoyan’s place of “ordinary residence” before December 22, 2009, and I decline to do so. None of my conclusions on these appeals turns on Mr. Armoyan’s place of “ordinary residence” before December 22, 2009. I agree with Justice Campbell’s conclusion that Mr. Armoyan was “ordinarily resident” in Nova Scotia from December 22, 2009 to December 22, 2010. But my agreement shouldn’t be taken as extending to the judge’s test for his statement that Mr. Armoyan was not “ordinarily resident” in Florida during the Armoyan family’s “fresh start in Florida as part of a plan to revitalize their marriage” from the start of September 2008 until mid-October 2009. (b) Court Jurisdiction and Proceedings Transfer Act, s. 12 [217] I will move to forum non conveniens. [218] Justice Campbell first addressed the tests that would apply in the absence of the forum selection clause in the Marital Agreement. Then, in the alternative, he discussed the Marital Agreement. I will follow the same approach. I will come to the Marital Agreement later (paras 313-59). [219] Despite that a court has jurisdiction simpliciter, the court should stay its proceeding and defer to another forum that is clearly more convenient. Ms. Armoyan had the burden to show that Florida clearly was the more convenient forum. In Club Resorts Ltd. v. Van Breda, [2012] 1 S.C.R. 572, Justice LeBel said: [103] If a defendant raises an issue of forum non conveniens, the burden is on him or her to show why the court should decline to exercise its jurisdiction and displace the forum chosen by the plaintiff. The defendant must identify another forum that has an appropriate connection under the conflicts rules and that should be allowed to dispose of the action. The defendant must show, using the same analytical approach the court followed to establish the existence of a real and substantial connection with the local forum, what connections this alternative forum has with the subject matter of the litigation. Finally, the party asking for a stay on the basis of forum non conveniens must demonstrate why the proposed alternative forum should be preferred and considered to be more appropriate. [104] This Court reviewed and structured the method of application of the doctrine of forum non conveniens in Amchem. ... The doctrine tempers the consequences of a strict application of the rules governing the assumption of jurisdiction. As those rules are, at their core, based on establishing the existence of objective factual connections, their use by the courts might give rise to concerns about their potential rigidity and lack of consideration for the actual circumstances of the parties. When it is invoked, the doctrine of forum non conveniens requires a court to go beyond a strict application of the test governing the recognition and assumption of jurisdiction. It is based on a recognition that a common law court retains a residual power to decline to exercise its jurisdiction in appropriate, but limited, circumstances in order to assure fairness to the parties and the efficient resolution of the dispute. The court can stay proceedings brought before it on the basis of the doctrine. To similar effect: Breeden v. Black, [2012] 1 S.C.R. 666, para 23. [220] The forum non conveniens principles in this Province are codified in the Court Jurisdiction and Proceedings Transfer Act, S.N.S. 2003, c. 2, as amended (“CJPTA”). [221] In Teck Cominco Metals Ltd. v. Lloyd’s Underwriters, [2009] 1 S.C.R. 321, Chief Justice McLachlin for the Court discussed these codified principles: [22] Section 11 of the CJPTA [of British Columbia] was intended to codify the forum non conveniens test, not to supplement it. The CJPTA is the product of the Uniform Law Conference of Canada. In its introductory comments, the Conference identified the main purposes of the proposed Act, which included bringing “Canadian jurisdictional rules into line with the principles laid down by the Supreme Court of Canada in Morguard Investments Ltd. v. De Savoye, [1990] 3 S.C.R. 1077, and Amchem Products Inc. v. British Columbia (Workers’ Compensation Board), [1993] 1 S.C.R. 897” ... Section 11 of the CJPTA thus constitutes a complete codification of the common law test for forum non conveniens. It admits of no exceptions. [222] Section 11 of British Columbia’s statute is equivalent to s. 12 of Nova Scotia’s CJPTA. [223] Nova Scotia’s CJPTA, s. 12 says: Court may decline territorial competence 12(1) After considering the interests of the parties to a proceeding and the ends of justice, a court may decline to exercise its territorial competence in the proceeding on the ground that a court of another state is a more appropriate forum in which to hear the proceeding. (2) A court, in deciding the question of whether it or a court outside the Province is the more appropriate forum in which to hear a proceeding, must consider the circumstances relevant to the proceeding, including (a) the comparative convenience and expense for the parties to the proceeding and for their witnesses, in litigating in the court or in any alternative forum; (b) the law to be applied to issues in the proceeding; (c) the desirability of avoiding multiplicity of legal proceedings; (d) the desirability of avoiding conflicting decisions in different courts; (e) the enforcement of an eventual judgment; and (f) the fair and efficient working of the Canadian legal system as a whole. [224] I will turn to the Justice Campbell’s reasoning on forum non conveniens and s. 12 of the CJPTA. (c) Ms. Armoyan’s Advancement of the Florida Proceeding [225] Justice Campbell’s oral adjournment ruling of February 24, 2012, with the condition that restrained Ms. Armoyan from advancing the Florida proceeding, said (above, para 205): I suppose I might also draw some form of adverse inference against Ms. Armoyan if she were to disobey the condition. [226] The judge’s’s Addendum Decision of September 14, 2012 held that the Florida Court’s forum non conveniens ruling of April 4, 2012 contravened his adjournment condition: [82] ... I was aware that this Court could not bind the Respondent to refrain from proceeding in Florida but counsel urged me to make that condition to position him to complain if that condition should be breached. The date of this Court’s decision on the motion to adjourn was February 24, 2012. [83] In the meantime, the Petitioner had defaulted in the monthly payments of the Florida separate maintenance order after payment in January 2012. As a result a number of contempt appearances and other enforcement processes were underway in Florida. On April 4, 2012 the Florida Court determined that it would take jurisdiction over all of the issues before it including the validity of the marriage contract and it dismissed the Petitioner’s motion to dismiss the Florida proceeding for lack of subject matter jurisdiction and forum non conveniens. This development was expected to be avoided by the condition which I added to allowing the Respondent’s request to adjourn the February 2012 dates to August 2012. Therefore, the prejudice to the Petitioner envisaged by his counsel actually materialized despite the adjournment condition which I imposed to protect against prejudice. The Addendum Decision then drew what the judge had described as the inference, in my view more properly termed a presumption, against Ms. Armoyan, that his Adjournment Decision of February 24, 2012 had foretold: [89] Also I am cognizant of the fact that, if I reject jurisdiction because of the Florida Court had [sic] already assumed jurisdiction, I would be allowing the Respondent’s adjournment request to operate to her own strategic advantage and to the Respondent’s [sic - Mr. Armoyan’s] wholesale disadvantage despite his deference to the Petitioner’s [sic - Ms. Armoyan’s] dire need for that adjournment. [90] Accordingly, all the matters between the parties brought to this Court shall be heard in this Court. [227] In my opinion, this approach erred in principle. [228] The judge’s function was governed by the criteria in s. 12 of the CJPTA. Those criteria codify Amchem’s principles (Teck Cominco, para 22, quoted above, para 221). [229] I have discussed earlier that the insertion of Condition #2 was procedurally deficient (paras 181-87) and offended Amchem’s principles (paras 192-204). [230] In particular, under Amchem, the domestic Court should not restrain advancement of the foreign proceeding before the foreign court considers forum non conveniens and decides to accept jurisdiction. Justice Campbell’s Condition #2 operated from the diametrically opposite perspective, by attempting to prevent the Florida Court from reaching a decision on forum non conveniens. His Addendum Decision then went a step further by “spanking” Ms. Armoyan, as her counsel termed it at the appeal hearing, on the merits of the Nova Scotia forum non conveniens issue because the Florida Court had considered the very issue that Amchem directs the Nova Scotia Court to await. [231] Mr. Armoyan’s participation in the Nova Scotia proceeding after February 2012 contravened the terms of the Florida Court’s anti-suit injunction of February 29, 2012 (above, para 73). The Florida Court was subject to the due process provision in the Fourteenth Amendment to the Constitution of the United States, as had been the Texas Court whose decision was accorded comity-based deference, for that reason, in Amchem (Amchem, pp. 937-39, quoted above, para 131). Justice Campbell’s reasons drew no conclusion from Mr. Armoyan’s contravention. [232] Justice Campbell’s reasons, quoted above, say that, if he accepted that Florida was the convenient forum, “I would be allowing [Ms. Armoyan’s] adjournment request to operate to her own strategic advantage”. [233] The adjournment in February 2012 occurred because counsel’s husband was suddenly diagnosed with terminal cancer. After Mr. Armoyan insisted on the restraint of Florida proceedings, as a condition of adjournment, Ms. Armoyan’s counsel asked to withdraw her request for the adjournment. Ms. Armoyan preferred an immediate Nova Scotia hearing to an adjournment accompanied by the Florida restraint. Mr. Armoyan’s counsel objected that Ms. Armoyan could not withdraw her request for an adjournment. Mr. Armoyan preferred the Nova Scotia adjournment with the condition against Florida advancement. The judge agreed with Mr. Armoyan, that the adjournment request could not be withdrawn. (above, para 166). Nothing in this scenario suggests that the adjournment request was “strategic” for Ms. Armoyan. [234] To the contrary, the adjournment with the condition would operate to Mr. Armoyan’s advantage. The condition would freeze the Florida litigation, which had been Mr. Armoyan’s objective since he filed his Florida forum non conveniens motion in November 2009. Mr. Armoyan would accomplish this while remaining in Nova Scotia, instead of attending his forum non conveniens motion in Florida, where he would have to face the music for his default in court ordered support and costs. If, as appeared likely, the Florida Court took jurisdiction in reaction to Mr. Armoyan’s default in support payments, the condition would deal Mr. Armoyan a trump card in the Nova Scotia forum non conveniens proceeding, where Justice Campbell predicted he would draw an “adverse inference against Ms. Armoyan”. [235] Nor can it be said that the Florida Court’s forum non conveniens ruling of April 4, 2012 resulted from any “strategic” use of the Nova Scotia adjournment by Ms. Armoyan. The April 4, 2012 hearing in Florida was further to Mr. Armoyan’s motion, filed on November 10, 2009, for an order that Florida had no jurisdiction and was not the convenient forum. Well before Justice Campbell issued Condition #2 to his Adjournment Order on February 24, 2012, the Florida Court had scheduled the hearing of Mr. Armoyan’s motion. Mr. Armoyan did not withdraw his motion. Justice Campbell did not restrain Mr. Armoyan’s activity in Florida. Yet the judge drew an adverse presumption against Ms. Armoyan because Mr. Armoyan’s motion was heard. Justice Campbell appears to assume that, to satisfy Condition #2, Ms. Armoyan was required to avoid that hearing, pacing the hallway outside the Florida courtroom, and risk Mr. Armoyan’s motion succeeding by default. [236] Under Amchem, the domestic court should defer to the foreign court if the foreign court “could reasonably have concluded” that its forum clearly was more appropriate. The Florida Court’s Orders of February 29, 2012 and April 4, 2012, made it clear that the Court was exercising its jurisdiction to protect Ms. Armoyan and the children, Florida residents, left vulnerable by Mr. Armoyan’s default in payment of court-ordered support. Clearly the Florida Court had a real and substantial connection, and a reasonable basis for activity. If Florida had been another Canadian province, s. 6(1) of Canada’s Divorce Act might well clothe the court, where the children reside, with jurisdiction over the entire divorce proceeding (see below, para 307). [237] From the perspective of the Florida Court and Ms. Armoyan, these processes were entirely appropriate, as I have explained when discussing the Adjournment Appeal. Justice Campbell disregarded these factors. [238] In my respectful view, the judge’s use of this factor to support his forum non conveniens ruling erred in principle. (d) Conflicting Decisions [239] Section 12(2)(d) of the CJPTA says that “the desirability of avoiding conflicting decisions in different courts” must be considered. [240] Justice Campbell’s reasons said: [85] ... On the assumption that the Florida Court has already or otherwise may soon make an order quantifying child support and spousal support and possibly in relation to other remedies sought, my decision to accept jurisdiction could result in competing orders in the two jurisdictions which may or may not have different impacts. This Court would prefer to avoid this duplicity of court orders because chaos may otherwise result in terms of enforcement. ... [91] If a party decides to continue this duplicity of proceedings in the two courts and if there is conflict between the content of the orders in those jurisdiction [sic], those problems will have to be solved in some manner. [241] It is useful to consider the legal consequences of the potential conflict. [242] Section 22(1) of the Divorce Act says: A divorce granted ... pursuant to a law of a country or subdivision of a country other than Canada by a tribunal or other authority having jurisdiction to do so shall be recognized for all purposes of determining the marital status in Canada of any person, if either former spouse was ordinarily resident in that country or subdivision for at least one year immediately preceding the commencement of proceedings for the divorce. [Emphasis added] [243] Ms. Armoyan commenced the Florida proceeding on October 20, 2009. There is no doubt that she was ordinarily resident in Florida for one year before that date. [244] Justice Campbell did not consider Ms. Armoyan’s place of “ordinary residence” between October 20, 2008 to October 20, 2009. But Judge Turnoff’s ruling on Mr. Armoyan’s Hague Convention application and the Florida Circuit Court’s ruling of April 4, 2012 on jurisdiction and forum non conveniens thoroughly analysed Ms. Armoyan’s residence in Florida. Their findings are quoted above (paras 23 and 75). Clearly Ms. Armoyan was ordinarily resident in Florida from the beginning of September 2008 to October 20, 2009 - the period when the Armoyans lived as a family in Florida, while trying to save their marriage, with their children attending Florida schools. The Florida Court’s findings are fully supported by Ms. Armoyan’s evidence in the Appeal Books for this appeal. Her affidavit says: 43. My intent was to become a Florida resident in September of 2008, with my Husband’s consent and encouragement, and have never deviated from that intent. 44. My husband and I even attended marital counseling in Florida, so as to attempt to save our marriage. 45. I do not plan on residing in Canada subsequent to these proceedings, as my life, as well as the children’s, is here in Florida. [245] Earlier (para 214) I referred to the test for “ordinary residence” from this Court’s decision in Quigley and Castel. During the year before October 20, 2009 Ms. Armoyan’s “ordinary residence ... where she is settled-in and maintains her ordinary mode of living with its accessories, relationships and conveniences, or where she lives as one of the inhabitants as opposed to a visitor”, in Quigley’s words, was Florida. I will add here that, though Justice Campbell’s Decision did not address Ms. Armoyan’s “ordinary residence” or s. 22(1), this Court raised those topics explicitly with counsel at the appeal hearing, and counsel were given the opportunity to make submissions on those matters. [246] Ms. Armoyan’s “ordinary residence” in Florida for one year before her petition means that, by s. 22(1) of the Divorce Act, the divorce granted by the Florida Circuit Court on October 26, 2012 “shall be recognized for all purposes of determining the marital status in Canada of any person” - i.e. of Mr. and Ms. Armoyan. “All purposes” is self-explanatory. That Florida Divorce Order said: the marriage between the parties is irretrievably broken; and thus, it is dissolved. [247] A court cannot “divorce” a currently unmarried couple who have already been divorced. Section 2(1) of the Divorce Act defines “divorce proceeding” as a proceeding in which either or both “spouses” “seek a divorce alone or together with a child support order, a spousal support order or a custody order”. Because of s. 22(1), after the Florida Divorce Judgment of October 26, 2012, a second “divorce proceeding” between the Armoyans under the Divorce Act cannot become airborne in the Supreme Court of Nova Scotia (Family Division). [248] Given the Florida divorce, an equivalent hurdle faces the Family Division for corollary relief under the Divorce Act. Pitel’s Conflict of Laws, pp. 463-4 states: Support Orders and Foreign Divorces The Divorce Act does not authorize a Canadian court to grant corollary relief in respect of a foreign divorce. In V.(L.R.) v. V.(A.A.) [(2006), 52 B.C.L.R. (4th) 112 (C.A.)] the British Columbia Court of Appeal outlined the historical evolution of the jurisdictional rules in the Divorce Act, noting that prior to amendments made in 1993, it granted jurisdiction to the court to determine corollary relief only where the court itself had granted the divorce. The broader provisions of the current section 4, which give the court jurisdiction where either spouse is ordinarily resident in a province or where both spouses accept the jurisdiction of the court, had led some commentators to suggest that the amendment was sufficiently broad to enable a foreign divorcee to institute support proceedings under section 15 if he or she was now ordinarily resident in Canada. However, the British Columbia Court of Appeal held that there was nothing in the statute to lead to the conclusion that Parliament intended to give jurisdiction to a Canadian court to grant corollary relief with respect to a foreign divorce. Just as Canadian courts do not have jurisdiction to grant corollary relief in respect of a foreign divorce, they also are not authorized to vary the corollary relief granted by a foreign court in conjunction with the foreign divorce. This is so even where both parties reside in the province and have consented to the court’s jurisdiction. This likely reflects the constitutional limitations on the authority that the federal Parliament has over support obligations. In Rothgiesser v. Rothgiesser [(2000) 46 O.R. (3d) 577 (C.A.)] the Ontario Court of Appeal held that “any attempt to deal with support obligations in the absence of a Canadian divorce would encroach on provincial jurisdiction (s. 92, ‘Property and Civil Rights’).” Although the British Columbia Court of Appeal in V.(L.R.) did not specifically rule on the constitutional question, it also conceded that “much can be said for the proposition that such an enactment would be invading provincial jurisdiction over ‘property and civil rights in the Province.’ ” Although a court cannot address support obligations under the Divorce Act if the divorce was granted in a foreign jurisdiction, this does not mean that support is not available to a foreign divorcee who is now resident in Canada. It means that he or she must rely on the provincial jurisdiction over support. [249] Similarly, Castel, paras 19.1-19.2 says: The Divorce Act does not authorize a Canadian court to grant corollary relief in respect of a foreign divorce decree, or to vary the corollary relief granted by a foreign court in the course of granting a divorce, although a Canadian court may do so pursuant to provincial legislation for interjurisdictional support where the respondent resides in a reciprocating jurisdiction. ... A Canadian court has jurisdiction to vary the corollary relief granted pursuant to a divorce only where the divorce was granted in that court. Thus, a support order granted in a province in Canada pursuant to a foreign divorce and a subsequent order made in that province to vary it would be nullities despite the parties’ consent to the jurisdiction of that court because their consent cannot overcome the limitations on the court’s authority found in section 4 of the Divorce Act. Nor can a fresh application in the face of an existing foreign order for support based on a foreign divorce overcome this restriction. Jurisdiction to vary a foreign support order is limited to that found in the Interjurisdictional Support Orders legislation. ... [250] As support for these principles, Pitel and Castel cite numerous authorities, trial and appellate, in addition to the decisions of the British Columbia and Ontario Courts of Appeal in V.(L.R.) and Rothgiesser. [251] This case is not like some civil claims with parallel proceedings, where one court’s assertion of jurisdiction may be deflected by the other court declining recognition, which may seamlessly avoid the conflict. Here, s. 22(1) mandates recognition “for all purposes of determining the marital status” of the Armoyans. The effect is to arrest the Family Division’s powers over a second divorce, and over corollary child and spousal support under the Divorce Act. As Teck Cominco said (paras 26, 30), all the factors are to be weighed. This factor has a massive specific gravity that warrants more than just a passing glance in the forum non conveniens analysis. [252] The Florida Divorce Judgment of October 26, 2012 did not exist when Justice Campbell issued his forum non conveniens decision in September. But Justice Campbell knew that Florida’s courts had accepted divorce jurisdiction on April 4, 2012, and that a Florida ruling on the merits was imminent. His Initial Decision of September 5, 2012 says: [7] ... The Florida Court is scheduled to rule today on the merits so I felt compelled to make known my decision before that ruling occurs, even though time does not permit me to offer reasons until later. [253] The judge’s Addendum Decision shows no recognition of the impending jurisdictional impasse. His reasons say: [91] If a party decides to continue this duplicity of proceedings in the two courts and if there is conflict between the content of the orders in those jurisdiction [sic], those problems will have to be solved in some manner. ... [254] With respect, saying “We’ll cross that bridge when we come to it” isn’t good enough. There is no bridge. The judge effectively failed to address the factor - “avoiding conflicting decisions in different courts” - that s. 12(2)(d) of the CJPTA says he “must consider”. [255] The judge also said (para 66) that s. 12(2)(f) of the CJPTA - “the fair and efficient working of the Canadian legal system” - “favor[s] a conclusion that the most convenient forum is Nova Scotia”. He did not elaborate. Given the jurisdictional logjam downstream in a Nova Scotia court, I respectfully disagree. (e) Juridical Advantage [256] Justice Campbell emphasized juridical advantage. He said: [60] The Court heard expert testimony from a lawyer in Florida with respect to family laws there. Unlike the MPA [Matrimonial Property Act of Nova Scotia] which distinguishes matrimonial assets from business assets and presumptively exposes only the former to division between the spouses, the Florida law would divide all of the property in an equitable way. A second difference was that costs in Florida are normally awarded against the party most able to afford to pay whereas here, costs are more likely to follow success of a party. Counsel for the Petitioner argues that the Florida law would represent a “juridical advantage” to the Respondent and a corresponding disadvantage to the Petitioner. [61] Counsel cites the case of Amchem Products Inc. v. British Columbia, [1993] 1 S.C.R. 897 as authority for the proposition that the Court should adopt juridical advantage as a reason to decline to defer jurisdiction. He quotes Justice Sopinka at paragraph 55 as follows: When will it be unjust to deprive the plaintiff in the foreign proceeding of some personal or juridical advantage that is available in that forum? .... The appropriate inquiry is whether it is unjust to deprive the party seeking to litigate in the foreign jurisdiction of the juridical or other advantage, having regard to the extent that the party and the facts are connected to that forum based on the factors which I have already discussed. A party can have no reasonable expectation of advantages available in a jurisdiction with which the party and the subject matter of the litigation has little or no connection. Any loss of advantage to the foreign plaintiff must be weighed as against the loss of advantage, if any, to the defendant in the foreign jurisdiction if the action is tried there rather than in the domestic forum. I have pointed out in my discussion on the test for determining forum non conveniens that loss of juridical advantage is one of the factors. ... [62] I would conclude that the foreign party (the Respondent) should not be given a juridical advantage in asset division and costs by disentitling the domestic party (the Petitioner) to the laws of this family’s country of citizenship. This Court would take very little comfort from the possibility that the foreign Court may be required to apply Nova Scotia law. That is so for two reasons. First, there has been no such determination. Second, the application of foreign law by a Court is awkward, at best. [257] Essentially, the judge held that Ms. Armoyan should not enjoy a juridical advantage from a jurisdiction that was not “this family’s country of citizenship”. The Armoyans are Canadian citizens. [258] With respect, that was not Justice Sopinka’s test. The passage from Amchem quoted by Justice Campbell said “[t]he appropriate inquiry” was (1) whether it was “unjust to deprive” the foreign plaintiff of the foreign juridical advantage, “having regard to the extent that the party and the facts are connected” to the foreign forum, and then (2) any loss of advantage to the foreign plaintiff must be weighed against the loss of domestic advantage to the domestic plaintiff. [259] “[C]ountry of citizenship” is not the decisive factor for juridical advantage under Amchem’s test or the forum non conveniens criteria at common law, and is not mentioned by s. 12 of the CJPTA. Under principles of comity, if the foreign legal system shares Canada’s basic values, patriotic boosterism is not the domestic court’s prime directive: Van Breda, paras 63, 112; see also paras 301(b), 352 below, and authorities cited. Justice Campbell (para 86) acknowledged “[t]here is no question” that Florida is such a jurisdiction that “operates on similar and recognized principles of law”. [260] Justice Campbell’s reasons do not address Amchem’s “appropriate inquiry”. There is no attempt at a connections test between Ms. Armoyan and Florida, and no inquiry whether it would be unjust to deprive Ms. Armoyan of juridical advantages, having regard to those connections. Because both the Armoyans were Canadian citizens, the judge’s answer was straightforward. So the judge conducted no balancing of the parties’ advantages and disadvantages as prescribed by Amchem. Justice Turnoff’s ruling (above, para 23) on Mr. Armoyan’s Hague Convention application, and the Florida Circuit Court’s decision of April 4, 2012 on Mr. Armoyan’s forum non conveniens motion (above, para 75) thoroughly canvassed Ms. Armoyan’s Florida connections, and were in the record. Justice Campbell’s reasons make no reference to their analysis of Ms. Armoyan’s Florida connections. [261] In my respectful view, the judge’s focus on “country of citizenship” as the single pivotal factor respecting juridical advantage represents an error of principle. (f) Comity and the “Nova Scotia Family” [262] On the principle of comity the judge said: [86] I have been provided by both counsel with excellent legal briefs with respect to the concept of comity. Simply put, that doctrine calls for this Court to respect the decision of a competing court in another jurisdiction where that court operates on similar and recognized principles of law. It arises out of a sense of courtesy and respect for the other court. There is no question that the Florida Court is such a court that is fully recognized in Canada. [87] I have considered all of the cases presented to me by both counsel in respect of this issue. While this protocol is very persuasive, I have concluded from my reading that I am not absolutely bound based on comity to defer jurisdiction to Florida Court. [88] The overwhelming consideration is that I have formed the strong view that Nova Scotia is by far the more convenient forum for this family. They are fundamentally a Canadian family and a Nova Scotia family. They found themselves in Florida for what was never intended to be a lengthy period and in part for the purpose of the parties enjoying a “getaway” to work on their marriage difficulties. The employment opportunity made available by a company in which the Petitioner had a significant interest was done at least in part for the purpose of facilitating that sojourn. This Nova Scotia family deserves to have its marital issues resolved in the Nova Scotia Court applying Nova Scotia substantial law. [263] Basically, the judge concluded that comity succumbs here because the Armoyans fundamentally are a “Nova Scotia family”, and a Nova Scotia family “deserves ... the Nova Scotia Court”. [264] Justice Campbell does not cite a source in s. 12 of the CJPTA or the caselaw, for his criterion of the “Nova Scotia family”. Ms. Armoyan’s counsel submits that the judge erroneously drew this epithet from recycled factors that govern jurisdiction simpliciter. [265] Section 12 is not a precise algorithm, and the forum conveniens criteria, codified under s. 12(2), are broadly framed. In Van Breda, Justice LeBel said: [79] From this perspective, a clear distinction must be maintained between, on the one hand, the factors or factual situations that link the subject matter of the litigation and the defendant to the forum and, on the other hand, the principles and analytical tools, such as the values of fairness and efficiency or the principle of comity. ... [104] ... When it is invoked, the doctrine of forum non conveniens requires a court to go beyond a strict application of the test governing the recognition and assumption of jurisdiction. It is based on a recognition that a common law court retains a residual power to decline to exercise its jurisdiction in appropriate, but limited, circumstances in order to assure fairness to the parties and the efficient resolution of the dispute. The court can stay proceedings brought before it on the basis of the doctrine. [105] ... Despite some legislative attempts to draw up exhaustive lists, I doubt that it will ever be possible to do so. In essence, the doctrine [forum non conveniens] focusses on the contexts of individual cases, and its purpose is to ensure that both parties are treated fairly and that the process for resolving their litigation is efficient. [Emphasis added] To similar effect, respecting these distilled principles of fairness to the parties and efficient resolution: Van Breda, paras 74, 118; Morguard, page 1097; Hunt v. T&N PLC, [1993] 4 S.C.R. 289, page 326; Pitel, p. 83. [266] The question is whether the constituent reasoning behind the judge’s captioned “Nova Scotia family” criterion represents principles of comparative fairness and efficiency in the litigation. [267] Before addressing that question, my threshold concern is with the judge’s conclusion that the Armoyan “family” is fundamentally Nova Scotian. The judge’s reasons thoroughly describe Mr. Armoyan’s connections to Nova Scotia. But the “family” also includes Ms. Armoyan and three children, then aged 17, 16 and 14. [268] Ms. Armoyan last resided in Halifax in 2007, before they moved to Toronto where they resided until mid 2008. After their Toronto lease expired, she was briefly in Halifax in the summer 2008, awaiting their move to Florida in late August 2008. Since then she has been a Florida resident (though she visited relatives in Toronto in February 2009 and spent part of June-July 2009 in Halifax for her daughter’s surgery). Her affidavit says: 43. My intent was to become a Florida resident in September of 2008, with my Husband’s consent and encouragement, and have never deviated from that intent. ... 45. I do not plan on residing in Canada subsequent to these proceedings, as my life, as well as the children’s, is here in Florida. Those views were accepted by the Florida Courts, who listed and assessed Ms. Armoyan’s Florida connections, in Judge Turnoff’s ruling (above, para 23), the April 4, 2012 jurisdiction/forum non conveniens ruling (above, para 75), and the October 26, 2013 Divorce Judgment (above, para 79-92). [269] I will turn to the Armoyans’ daughters. Justice Campbell did not hear testimony from the Armoyans’ children. The Armoyans’ daughters testified on Mr. Armoyan’s Hague Convention Application. Judge Turnoff’s Report (above, para 23) says: Here, both children testified that they were last in Halifax in the summer of 2009 when C.A. underwent back surgery, and that prior to that they had not lived there since 2006. [citation omitted] The testimony indicates that the parties actually lived in Toronto, Canada from September 2007 through July 2008. ... They had initially relocated to Toronto, because Respondent [Ms. Armoyan] and the children hated living in Halifax. [c.o.] In fact, the children so despised Halifax that prior to leaving for Toronto, they “smashed all [their] toys” and “[wrote] on the windows” because they “knew [they] were never [going] back” [c.o.]. Clearly, in their mind, they were not returning. Eventually, the family left Toronto because Petitioner [Mr. Armoyan] hated it there. [c.o.] (“[we left Toronto] because my mom hated Halifax and my dad hated Toronto.”) ... All evidence suggests that Petitioner consented to the move in an effort to save his marriage. Indeed, the entire family was trying to find a place where they could all be happy. ... Consistent with the above, it is the finding of this Court that these children are acclimatized and doing well in Florida. They have both adjusted to their schools, made friends and become involved in both school and extracurricular activities. ... Here, both girls object to being returned to Canada. They have both testified that they enjoy their friends, school and extracurricular activities in Florida. In other words, they have expressed a hugh [sic] sense of belonging. A sense that they are building their lives here; whereas in Halifax they felt as if they had no life. [c.o.] In this connection, when they speak about Halifax, they describe a feeling of not belonging. ... In this Court’s view, both girls have made it clear that they do not wish to return to Halifax. Rather, their wish is to remain in Florida with Respondent [Ms. Armoyan] [c.o.]. The Circuit Court’s ruling of April 4, 2011 (above, para 75) referred to evidence from the children and reiterated Judge Turnoff’s findings. [270] The Armoyans’ son lived in Toronto in 2007-08, attended school in Florida in 2008-09, and then has attended school in Toronto, living with his maternal grandparents, from where he returns to Florida to stay with Ms. Armoyan and his sisters. He has not lived in Nova Scotia since the move to Toronto in 2007, and has no connection to this province. [271] Given the above, the judge’s cri de coeur that Ms. Armoyan and the children were fundamentally “Nova Scotian” in 2012 is a jarring proposition. [272] Justice Campbell did not hear evidence from the children, did not cite or challenge the Florida findings, and did not cite evidence contrary to those findings, respecting Ms. Armoyan and the children. Rather, his Decision elaborates on Mr. Armoyan’s connections to Nova Scotia, virtually ignores the perspectives of the children and Ms. Armoyan, and then extrapolates Mr. Armoyan’s perspective to the “family”. The reasoning resembles the former principle of family law, now discarded, that the patriarch’s domicile presumptively is the wife’s domicile of dependence (see Pitel, pp. 18-19). Neither does the judge explain how Ms. Armoyan’s and the children’s historical Nova Scotia connections, which ended in mid-2007, pertain to the fairness and efficiency of the litigation - Van Breda’s criteria - five years later in 2012. (g) Comparative Fairness and Efficiency [273] As noted above, in Van Breda, Justice LeBel said the governing objective was “to ensure that both parties are treated fairly and that the process for resolving their litigation is efficient”. These principles are embodied in the CJPTA’s criteria, including: s. 12(1) [“the interests of the parties to a proceeding and the ends of justice”]; s. 12(2) [“the circumstances relevant to the proceeding”]; s. 12(2)(a) [“comparative convenience and expense for the parties to the proceeding and for their witnesses”]; s. 12(2)(e) [“the enforcement of an eventual judgment”]; and s. 12(2)(f) [“fair and efficient working of the Canadian legal system”]. [274] Justice Campbell’s Addendum Decision discusses aspects of this topic as follows: [56] ... However, the Petitioner has withdrawn his claims for parenting issues and therefore there will be no need for Florida witnesses to come to Nova Scotia to testify about parenting. [57] It can be anticipated that there will be a need for various witnesses to testify about the value and history of acquisition of various financial assets. Marketable securities were managed in Nova Scotia and persons from that investment firm would be probable witnesses. The operating companies in which the Petitioner had an interest and from which he derived net proceeds of about $23 million are located largely in Nova Scotia and possibly Ontario. In any event they are not in Florida. [58] If there should be a need for testimony from family members on either side, I have evidence that some possible candidates are in Ontario and others are in Nova Scotia. I have no evidence that any family members of the Respondent and her children reside in Florida. [59] I have a vague expectation that there are certain professional or quasi-professional persons in Florida who might be witnesses for the Respondent. For example, the contents of a laptop computer were copied and analyzed in Florida by a person with technical ability. The admissibility of those documents is in dispute and therefore it is possible, yet unclear, as to whether any such witness from Florida would be required in Nova Scotia. There may be other persons who would be required to travel from Florida to testify in Nova Scotia. However, on balance I have concluded that the main witnesses are in Canada and, of those most are in Nova Scotia. ... [63] Additionally, because the assets and incomes of the separated family are not located in Florida, and are in part located in Nova Scotia, it is arguable that enforcement of any order obtained would be more convenient to the Respondent if the matter is heard in Nova Scotia. Counsel for the Respondent disagrees and argues that enforcement is possible even if the judgment comes from Florida. I do not disagree that enforcement is possible but I must accept the notion that it is more cumbersome from Florida. [275] For the division of matrimonial property, I agree with the judge’s conclusion. For child and spousal support, I respectfully disagree. (i) Division of Matrimonial Property [276] The jurisdictional obstacle to fresh “divorce proceedings” that derives from s. 22(1) of the Divorce Act discussed earlier, would not impair the legally distinct application for the division of matrimonial property under the provincial Matrimonial Property Act. As Justice Campbell said: [8] ... It is noteworthy that as a matter of procedure, claims under the MPA can be pleaded in a Divorce Petition. This is done for efficiency and does not change the fact that an action under the MPA is separate from those pleadings which arise from the Divorce Act. [277] In Tezcan v. Tezcan (1987), 20 B.C.L.R. (2d) 253 (C.A.) at p. 256, McLachlin J.A., as she then was, said: ... The general rule is that the courts of a country have no jurisdiction to adjudicate on the right and title to lands not situate within its borders. Only the courts of the jurisdiction in which lands are situate, may adjudicate on the rights and title to such lands.... Pitel, p. 323 says: The converse of the foreign immovable rule is that the courts of a foreign country have no jurisdiction to adjudicate title to, or the right to possession of, land outside that foreign country. The leading decision is Duke v. Andler. ([1932] S.C.R. 734) To similar effect: Castel, paras 14.11(b) and 23.1(a). [278] The validity of Mr. Armoyan’s conveyance of the matrimonial home, and Ms. Armoyan’s claim of title to the matrimonial home clearly are for the Nova Scotia courts. The Florida Court could not determine those matters and, if it attempted to do so, its decision would not be recognized in this province. [279] The matrimonial home, or its proceeds is central to the division of matrimonial property. Mr. Armoyan said its value was $3 million. It is hardly conceivable that a court could efficiently rule upon the division of matrimonial property, without considering the matrimonial home. [280] Then there is the problem of Mr. Armoyan’s non-disclosure. The Florida Divorce Judgment of October 26, 2012 (above, para 88) acknowledged that the Florida Court was “stymied” on division of assets: 49. As this Court cannot address the value of any of those interests [Mr. Armoyan’s ownership interests in his companies], as discovery has been stymied by the Husband, this Court specifically reserves jurisdiction to address the value of the Husband’s interest in [Mr. Armoyan’s various companies] ... [281] At the hearing in this Court, Mr. Armoyan’s counsel submitted that Nova Scotia would be the more convenient forum for various reasons, including that Mr. Armoyan’s information was located in Nova Scotia, making the information more amenable to discovery. It was heartening to hear that comment on Mr. Armoyan’s behalf, given the Florida Courts’ difficulties with the extraction of his financial disclosure. I reiterate, as guidance for the upcoming disclosure, this Court’s comments in Coltsfoot Publishing Ltd. v. Foster-Jacques, 2012 NSCA 83: [93] Rules 59.19 to 59.27 advertently engage the court in the mandatory pre-trial acquisition of evidence. The court is enlisted as a warden to ensure that, in family proceedings, obtaining the information which is essential to the court’s fact finding is not a costly battleground, lever of procrastination or “game of hide and seek”: O’Brien v. O’Brien, 2007 NBCA 22, para 15; Chernyakhovsky v. Chernyakhovsky, [2005] O.J. No. 944 (S.C.), para 6. The parties’ court filings under Rule 59 are vital to the workings of the court’s administration of justice for the divorcing litigants. [282] For the above reasons, I agree with Justice Campbell that the division of matrimonial property, further to an application under the Matrimonial Property Act, would be more fairly and efficiently accomplished in the Family Division of the Supreme Court of Nova Scotia than in the Florida Circuit Court. (ii) Child and Spousal Support [283] There is more to comparative fairness and efficiency than adding up witnesses’ air miles. I will address three additional factors: access to justice, functional effectiveness, and respect for stipulations to the court. [284] Access to Justice: Access to justice is central to the fair and efficient administration of justice. [285] Ms. Armoyan filed her Florida divorce petition in October 2009. Mr. Armoyan responded with strategies that included: (1) his spurious Hague Convention Application and (2) his rejected Disqualification Motion, (3) his resistance to disclosure, (4) his stipulation to the Florida Court to avoid disclosure, (5) his motions for stays or adjournments related to the above, (6) his refusal to abide by the Interim Support Order notwithstanding his stipulation, (7) his disobedience of the Florida costs orders and (8) his Florida motion for a forum non conveniens ruling followed by (9) his successful request for a condition in the Nova Scotia Court’s February 24 and March 13, 2012 order that restrained Ms. Armoyan from responding to his Florida forum non conveniens motion. The Florida Circuit Court received 722 pleadings, apart from the appeal pleadings. In the Florida Divorce Judgment (above, para 79) Judge Martz said: 15. It is now understood by this Court, that the Husband’s actions were solely to plummet the Wife and children to financial oblivion, and to deprive her of access to legal counsel. Ms. Armoyan has accumulated staggering legal accounts, responding to Mr. Armoyan’s initiatives, while Mr. Armoyan has defaulted in his court-ordered reimbursement of her costs after his initiatives were rejected. Meanwhile, the stays and delays that accompanied his Florida initiatives have well served Mr. Armoyan, who has used the time to avoid support payments, convey assets to relatives and move tens of millions of dollars from Nova Scotia to the Middle East. [286] Despite the obstacles, the Florida process reached a conclusion with an Order for child support and spousal support in the Divorce Judgment of October 26, 2012. [287] Mr. Armoyan now says that Florida’s slate should be wiped clean, and everyone should start again in Nova Scotia, like hitting a mulligan off the first tee. Mr. Armoyan has the multi-million dollar capital to pay for this. Ms. Armoyan is in financial tatters, with no resources for a replay. [288] Had Mr. Armoyan complied with his Florida court-ordered interim support payments and with the Florida Court’s orders that he reimburse Ms. Armoyan’s costs, then the significance of this factor might recede somewhat. But that is not his position. Having bled Ms. Armoyan financially with litigious shenanigans, he seeks to disregard the resultant costs awards against him and the Interim Support Order, then take advantage of the financial disparity in a fresh proceeding. [289] In my view, a consideration of how these circumstances affect access to justice is essential to the analysis of comparative fairness and efficiency under the forum non conveniens principles, s. 12 of the CJPTA, and Justice LeBel’s comments in Van Breda. [290] Nowhere does Justice Campbell’s Addendum Decision take account of this factor. Under the heading “The Florida Court Proceedings”, the Decision (paras 11-13) summarizes the Florida litigation in fifteen lines of text. The Decision’s conclusion included (para 91): However, the parties must live with their respective decisions to proceed in parallel forums. [291] Saying that Ms. Armoyan made her Florida bed and must lie in it does not, in my respectful view, address the impact on access to justice, and comparative fairness and efficiency, that has resulted from Mr. Armoyan’s campaign of attrition. [292] Functional Effectiveness: A second aspect of comparative efficiency is the functional effectiveness, respectively, of the Florida and Nova Scotia courts to address the issues of child support and spousal support. [293] The Florida Circuit Court initially was prepared to defer to Nova Scotia’s forum conveniens process. On June 7, 2011, the Circuit Court said (above, para 69): This Court hopes the Canadian Court will address the issue, because that is the better of the two. [294] After Mr. Armoyan defaulted in his court-ordered support payments and costs awards, the Florida Court’s attitude changed. In February, 2012, the Circuit Court, with notice to Mr. Armoyan, acted to enforce its previous Orders for the protection of its financially vulnerable residents. The Florida rulings emphasized the irreparable harm to Ms. Armoyan and the children from his cessation of support payments. Meanwhile in Nova Scotia, also in February 2012, Justice Campbell said he was “not terribly concerned” about the default in support payments for Ms. Armoyan and the children (above, para 165). [295] At least in this case, the court in the recipient’s locale had the better field sensitivity to address a crisis of need. [296] Justice Campbell’s Initial Decision of September 5, 2012 noted the interregnum of financial support that would result from Nova Scotia’s acceptance of jurisdiction. The judge said: [8] In reaching this decision, I am concerned that there will be a period of time between today’s date and the completion of the trial on the merits, during which there will be no Nova Scotia decision with respect to the quantification of Child Support and/or Spousal Support if applicable. It is clear to this Court that there should be no void in such payments between today’s date and the date when those issues are ultimately determined by this Court. The children, at the very least, and probably their mother are entitled to be supported in that time frame. [9] To deal with this concern, this Court takes note that the separate Maintenance Order in the Florida Court would be intended there to have ongoing effect. There has been a history of nonpayment of that existing order. This should be remedied by the Petitioner in some way and he will be accountable to this Court for any failure to do so unless he can show cause why he has not volunteered a support regime for the family. ... [Emphasis added] [297] It is counter-intuitive that, in the same Decision where the judge ruled Nova Scotia was the more appropriate forum to address support, he then urged Mr. Armoyan to satisfy Florida’s support order on an ongoing basis. Justice Campbell’s statement that Mr. Armoyan “will be accountable to this Court for any failure to do so” has fizzled with the judge’s (November 26, 2012) stay of enforcement of Florida’s Interim Support Order under Nova Scotia’s ISO Act (above, para 129). So the “void in such payments” that Justice Campbell said clearly should not occur, has occurred as a natural consequence. This disarray derives from the decision that Nova Scotia was the forum conveniens for support issues. The judge’s solution - ongoing support payments under Florida’s Interim Support Order - confirms that Florida’s support order was the more effective mechanism in the first place. [298] This is an appropriate segue to enforcement. Justice Campbell said (para 66) that s. 12(2)(e) of the CJPTA - “enforcement of an eventual judgment” - “favour[s] a conclusion that the most convenient forum is Nova Scotia”. [299] Florida is a “reciprocating jurisdiction” under Nova Scotia’s ISO Act, s. 2(j) and Schedule A of the Interjurisdictional Support Orders Regulations, NS Reg. 73/2003, as amended, under that Act. Section 2(k) of the Act says “support” includes spousal or child support. Part III governs “Registration and Enforcement of Orders Made Outside the Province”. Section 17, in Part III, says that Part III applies to support orders and interim support orders. Section 19 permits registration in Nova Scotia of the order from a reciprocating jurisdiction, such as Florida. On March 21, 2012, Ms. Armoyan registered, under the ISO Act, the Florida Circuit Court’s Interim Support Order of August 11, 2011 (above, paras 54, 129). Sections 19(2) and 19(4) of the ISO Act state the registered order “has the same effect as a support order made by a Nova Scotia court” and “may be enforced ... with respect to arrears accrued before registration as well as with respect to obligations accruing after registration”. [300] Section 20(2) of the ISO Act permits the responding party to apply to set aside the registration. On May 25, 2012, Mr. Armoyan so applied. Section 20(4) says: 20(4) On an application under subsection (2), the Nova Scotia court may (a) confirm the registration; or (b) set aside the registration if the Nova Scotia court determines that (i) in the proceeding in which the order was made, a party to the order did not have proper notice or a reasonable opportunity to be heard, (ii) the order is contrary to public policy in the Province, or (iii) the court that made the order did not have jurisdiction to make it. [301] Mr. Armoyan has provided no substantive basis to the Court of Appeal to support the view that the registration of the Interim Support Order should be set aside under s. 20(4)(b): (a) As to s. 20(4)(b)(i), Mr. Armoyan had notice of the hearing, and a reasonable opportunity to be heard for both the Interim Support Order, where his counsel appeared, and the divorce hearing that led to the Florida Divorce Order of October 26, 2012, despite his decision not to appear at the divorce hearing. The Notice of Trial, dated September 6, 2012, was addressed to his Halifax address that was specified in the Order of February 14, 2012 which permitted his Florida counsel to withdraw from the record (above, paras 61 and 78). According to the Notice of Trial, “notice is being sent via U.S. Mail” to Mr. Armoyan at that address. Mr. Armoyan’s testimony confirmed that this was his office address where he receives mail. (b) As to s. 20(4)(b)(ii), the phrase “contrary to public policy” does not assign to the enforcing court a plenary reconsideration of the merits that were before the issuing court. Rather, “public policy” refers to an issue invoking “fundamental morality of the Canadian legal system”: Beals v. Saldanha, [2003] 3 S.C.R. 416, paras 71-72; Pitel, pp. 30-31, 179, 183-84; Castel, para 8.6. Mr. Armoyan has cited nothing of that gravitas at play with the Florida support orders. (c) As to s. 20(4)(b)(iii), the Florida Court held that it had personal jurisdiction over Mr. Armoyan. This conclusion appears obvious because, as Mr. Armoyan’s affidavit admits, he was served with the Divorce Petition in Florida on October 22, 2009. On April 4, 2012, the Florida Court held that it had subject matter jurisdiction, based on Florida’s criterion of Ms. Armoyan’s six month residency before her Petition. Mr. Armoyan has not appealed that ruling, and the appeal period has expired. I have already explained that Ms. Armoyan was resident in Florida during that period (above, paras 244-5). Castel, para 14.4 says: ... the enforcing court considers only whether the issuing court had jurisdiction simpliciter and it does not consider whether the issuing court ought to have exercised its discretion to decline jurisdiction on the basis that it was not a convenient forum. Mr. Armoyan has identified no basis on which a Nova Scotia court can overturn the Florida Court’s assessment of its own jurisdiction simpliciter. [302] This Court is not hearing an appeal from a ruling under ss. 20(2) and (4) of the ISO Act. But, to address the issues that are squarely before the Court of Appeal, I must consider whether this appeal record shows any real obstacle to “enforcement of an eventual judgment” under s. 12(2)(e) of the CJPTA. Justice Campbell held that “enforcement” problems support Nova Scotia as the convenient forum. Mr. Armoyan urges the Court of Appeal to agree with the judge. My response to Mr. Armoyan’s submission is: There is nothing on the record of this appeal, nor in the Decision under appeal, nor arising from Mr. Armoyan’s submissions to this Court that identifies any such substantive obstacle to enforcement under the ISO Act. [303] The only apparent impediment to enforcement is Justice Campbell’s Order of November 26, 2012, that suspended the enforcement of the Florida Interim Support Order until the “later” of the Court’s decision on this appeal and the conclusion of the matrimonial litigation in the Family Division (above, para 129). One might hope that, after the Court of Appeal’s decision on this appeal, that impediment would be addressed. The result of this Court’s decision will be that the only outstanding matter in the Family Division is the division of matrimonial property. There is no reason that the unresolved division of matrimonial property should suspend the enforcement of the support order. I understood that to be the point of Justice Campbell’s statement in his Initial Decision of September 5, 2012 (quoted above, para 296): It is clear to this Court that there should be no void in such payments between today’s date and the date when those issues are ultimately determined by this Court. [304] I will return to functional effectiveness. In late August, 2012, Mr. Armoyan withdrew his custody claims. Justice Campbell’s Addendum Decision acknowledged that custody is for the Florida Courts: [6] ... Accordingly, the jurisdictional challenge with respect to that part of the proceeding in both statutes is redundant. Given that change in pleadings and because of other factors that need not be articulated, I have decided that the Florida Court is the more appropriate forum in relation to parenting issues. [305] The court that determines custody can better assess the level of support that will complement the custodial parent’s requirements, matched to the particulars of the custody arrangement, and items related to the child’s circumstances such as health insurance, medical and prescription drug expenses, tuition and student travel costs, and the like. [306] The Florida Circuit Court’s Order of October 20, 2009 (above, para 35), immediately after Ms. Armoyan’s Petition, recognized that proposition: 7. ... No Final Judgment determining child custody and visitation may be entered absent determination of child support ... The Florida law expert’s report, filed by Mr. Armoyan, says (page 11): In Florida, it is the very strong public policy to require each parent to provide support for his or her children. ... Child support is a right that belongs solely to the child. ... The duty to support a child exists both before and after a dissolution of marriage and is independent of any settlement agreement made attendant upon dissolution. [307] In Canada, s. 6(1) of the Divorce Act operates from a similar perspective: Where an application for an order under section 16 [custody of children] is made in a divorce proceeding to a court in a province and is opposed and the child of the marriage in respect of whom the order is sought is most substantially connected with another province, the court may, on application by a spouse or on its own motion, transfer the divorce proceeding to a court in that other province. Sections 6(2) and (3) provide a similar power respecting corollary relief and variation orders where the child is more substantially connected to another province. The statute recognizes that the child comes first. A territory’s substantial connection to the child can drive the selection of forum for the entire divorce proceeding, or at least for corollary relief. [308] Mr. Armoyan’s Nova Scotia Petition for Divorce, dated December 22, 2010, has never requested an order related to child support, and in August 2012 he withdrew his claim to custody. There is no pleading filed by anyone with the Family Division that requests an order for child support. [309] Spousal support similarly involves an assessment of the recipient’s need which is affected by conditions in her jurisdiction of residence and by that jurisdiction’s taxation regime. The calculations of child support and spousal support are not hermetically segregated, and may have cross-impact. The Report of Mr. Armoyan’s Florida law expert, Exhibit C [Florida’s child support guidelines], says [§ 61.30(2).9] that the spousal support of the recipient parent affects the calculation of child support. Conversely, the receipt of child support may affect the calculation of spousal support. [310] Respect for Stipulation: Also pertinent to judicial efficiency is respect for the natural implications of a party’s stipulation to the court. Stipulations lubricate the judicial mechanism to assist its smooth functioning. On December 2, 2009, while Mr. Armoyan was in Florida, he explicitly told the Court that he would abide by Florida Court Orders (above, para 19). Then, on April 11, 2011, in return for the Court’s waiver of his financial disclosure, Mr. Armoyan filed with the Florida Circuit Court his written stipulation that he had the ability to pay the interim spousal and child support, and that his stipulation could be used for contempt enforcement if he defaulted (above, paras 47-53). His stipulation to enable the enforcement of his support obligations embodied an attornment to the Florida Circuit Court’s authority to determine those obligations. If he could just repudiate that authority, his stipulation would be sterile. [311] Conclusion: Justice Campbell’s Decisions of September 5 and 14, 2012 summarily concluded that child and spousal support would be for Nova Scotia’s court. But the decisions included no explanation of these conclusions that related to the children, or that analysed which jurisdiction could more fairly and efficiently calculate child support. Neither did the judge tailor any such reasoning to the calculation of spousal support. Rather, the judge focussed on asset division and witness’ travel. The judge did not address access to justice as an issue of comparative fairness, or the court’s functional effectiveness on support issues, or the impact of Mr. Armoyan’s stipulation to the Florida Court. [312] In my view, Florida clearly is the fairer and more efficient forum on the issues of child support and spousal support. Justice Campbell’s ruling that child support and spousal support were for Nova Scotia was based on errors in principle. (h) The Marital Agreement [313] The Marital Agreement included a forum selection clause: 20. PROPER LAW The parties hereto agree that the law governing this Agreement is the law of Nova Scotia and further agree that any court action taken in connection with any of the matters outlined herein is to be brought in the courts of Nova Scotia and no other jurisdiction. [Emphasis added] Despite its title, “Proper Law”, I will term this the “forum selection clause”. [314] Justice Campbell’s Addendum Decision said: [47] The forum selection clause in the marriage contract impacts the discussion of the forum non conveniens principle. He reiterated (paras 49 sub. 4, and 50) that the forum selection clause was “relevant”. Then the judge cited the forum selection clause as an alternative basis for his decision to choose Nova Scotia as the forum: [69] ... even if there were no marriage contract at all, the above discussion would lead to the matters being litigated here. [70] However, it may be necessary to comment briefly on the issues raised in case my conclusion with respect to convenient forum is found to be wrong. [71] The Court faced a dilemma with respect to its analysis of the impact of the marriage contract on the choice of forum issue. This was discussed with counsel at various preliminary stages prior to the commencement of the jurisdiction hearings. It was my opinion that the question of whether or not the marriage contract is valid according to the MPA principles and other common law contract principles and whether it should be varied or set aside pursuant to the MPA was a substantive issue. It follows from my conclusion that this Court should not rule on those points until it was first decided whether or not to accept jurisdiction generally. In the end, the jurisdiction issue was presented on the presumption that the marriage contract is valid. In my opinion, this approach does not bind the trial Judge in dealing with the validity or variation of the marriage contract. [72] Counsel for the Respondent argues that the choice of forum clause fails because it is not clear in expressing an intention the [sic - that] Nova Scotia’s jurisdiction is to be exclusive. Paragraph 20 of the marriage contract requires that “.... any court action taken in connection with any of the matters outlined herein is to be brought in the Courts of Nova Scotia and no other jurisdiction.” In my opinion those words would represent an exclusive choice of forum even if the first quoted phrases were not fortified by the final words “and no other jurisdiction”. [73] ... There could be no doubt that the intention of the parties was to indicate a choice of Nova Scotia Courts which in turn would apply its own substantive laws ... [315] It is first necessary to determine what the judge meant by these passages. I identify three propositions. [316] First, the judge did not rule on Ms. Armoyan’s challenge to the validity of the Marital Agreement generally or the forum selection clause in particular. I say this because: (1) the judge said (para 71) that he “should not rule” on validity “until it was first decided whether or not to accept jurisdiction” and that his ruling “does not bind the trial Judge in dealing with the validity or variation of the marriage contract”; and (2) he said (para 75) “[i]n the course of the trial it is anticipated that the Respondent will seek to set aside or vary the agreement in whole or in part” and “it will be incumbent upon the trial Judge to first determine whether the agreement should be varied or set aside”. [317] Second, the judge “presumed”, without ruling, that the Marital Agreement, including the forum selection clause, was valid. The judge said he did this because the issue “was presented” on that “presumption”: [71] ... It was my opinion that the question of whether or not the marriage contract is valid ... was a substantive issue. It follows from my conclusion that this Court should not rule on those points until it was first decided whether or not to accept jurisdiction generally. In the end, the jurisdiction issue was presented on the presumption that the marriage contract is valid. [Emphasis added] By “presented”, I assume the judge meant “presented by counsel for Mr. and Ms. Armoyan”. [318] Third, based on the presumed, but not judicially determined, validity of the forum selection clause, Justice Campbell used the forum selection clause as an alternative basis to support his ruling that Nova Scotia was the appropriate forum. I say this because: (1) the judge said (paras 47, 49, 50) that the clause “impacts” and was “relevant” to the forum non conveniens analysis; (2) he said (para 70) that his comments on the clause apply “in case my conclusion with respect to convenient forum is found to be wrong”; (3) he disagreed (para 72) with Ms. Armoyan’s submission that the clause “is not clear in expressing an intention the Nova Scotia’s jurisdiction is to be exclusive”, and (4) he said (para 73) there was “no doubt that the intention of the parties was to indicate a choice of Nova Scotia Courts”. Mr. Armoyan’s counsel, at the hearing in the Court of Appeal, expressed the view that the judge did use the forum selection clause as an alternative basis to bolster his ruling that Nova Scotia was the appropriate forum. [319] There are two problems with the judge’s approach. [320] First: Ms. Armoyan did contest the validity of the forum selection clause, and did not “present” any “presumption” that the forum selection clause was valid. To the contrary, she repeatedly rejected that presumption. This is clear from the transcribed exchanges between counsel and the judge. At a pre-hearing conference on June 20, 2011, Justice Campbell initiated the discussion: THE COURT: ... But there is a chicken and egg question in there as well that’s going through my mind because the contract calls for Nova Scotia to be the jurisdiction and so if the contract is valid, that provision may answer the jurisdiction question. ... So, it’s a bit of a moving target, as we’ve talked about all along. Do we deal with the validity first and the jurisdiction second or do we try to deal with them all at once or do we do the reverse. Any thoughts? Ms. Armoyan’s counsel said: MS. McGINTY: Well, that’s a chicken/egg story too. I mean, we don’t -- at this stage of jurisdiction, we don’t address the merits of the contract itself. We address the Court’s jurisdiction to deal with the merits and in addressing the jurisdiction we obviously have to, we can’t pretend that there no forum selection clause. And there is a test that will apply to the validity of that forum selection clause, which we will an imbalance of bargaining power and maybe fraud in the development of the -- I’m not sure. So, we will certainly have to address that but I don’t see how we can then move on, in the same hearing, to the validity of the contract on any level until the Court establishes its jurisdiction. Then, a few pages later: MS. McGINTY: ... we would acquiesce to the Court’s desire to adjudicate on the marriage contract without any prejudice to our argument on jurisdiction, if that was the comfort level that suited Your Lordship. ... After further discussion, the judge stated: THE COURT: ... I think that I need to have jurisdiction before I can rule on the validity of the contract. And the way that I would deal with it is, I suppose, deal with jurisdiction with the knowledge that there is a marriage contract that is presumed to be valid. And then make my decision based on all of the other jurisdictional factors and then deal with it. ... So, those first sets of dates in October will be admissibility and the second dates will be jurisdiction on the presumption that the marriage contract is valid. Finally, a few pages over, Ms. Armoyan’s counsel said: MS. McGINTY: Another point on that My Lord. You emphasized the assumption that the marriage contract is valid and I wish to emphasis [sic] that there should be no assumption that the forum selection clause is valid. THE COURT: Fair enough. [Emphasis added] Then the discussion turned to other topics. [321] Ms. Armoyan’s pre-hearing memorandum of September 29, 2011 said: ... Ms. Armoyan asserts, inter alia, that the proper law clause is void, having been induced by deception, and being the product of an imbalance in bargaining power. In support of this position, Ms. Armoyan relies upon the evidence of William Ryan Q.C., Brian Church Q.C., and her own affidavit evidence. The forum selection clause reads as follows: [quoting the “Proper Law” clause - para 20 of Matrimonial Agreement] [Emphasis added] [322] On October 24, 2011, the first day of hearing, the judge revisited the matter: THE COURT: ... So I think all Mr. Kelly’s asking for is that for purposes of today’s jurisdictional case, we have to presume the marriage contract to be valid, even though I may set it aside later. MS. MCGINTY: Absolutely. And that’s how we -- that’s -- that was the parameters in which we were supposed to work. We were very clear. Your Lordship was very clear. For the purposes of this jurisdiction here, we have to assume the marriage contract is valid. THE COURT: In its entirety. MS. MCGINTY: With one exception. THE COURT: Oh. One exception. MS. MCGINTY: And we were very clear about that, and Your Lordship confirmed it. The exception is forum selection clause. As we explained to you when we were preparing for this hearing, we would accept your view that you could not adjudicate jurisdiction until you knew if the marriage contract was valid. So we came here under your direction, My Lord, and my friend will find the transcript for me, and I -- under your direction, assuming the marriage contract was valid, with the exception of the forum selection clause. [Emphasis added] ... MS. MCGINTY: ... I counted on the direction from the Court where we discussed going ahead on the validity -- on the jurisdictional issue and the assumption that the marriage contract was correct. I immediately advised the Court that we were prepared to do that only if we did not assume the forum selection clause was correct. And that was -- that was what Your Lordship agreed to or countenanced as our framework for today’s hearing. THE COURT: All right. Well I think this discussion has been useful, because it -- it -- you’ve heard, Mr. Kelly, her position. I don’t think you’ve gotten what you were hoping for in -- [Emphasis added] ... MS. MCGINTY: My Lord, before we -- before we go any further, I do wish to -- to fill the Court in on why we believe that our arrangement today was to simply address -- to assume the marriage contract is valid, with the exception of the forum selection clause. And I take you to the transcript of June 20th, 2011 ... [Emphasis added] ... THE COURT: ... So I don’t see a big problem if you were to simply, for today’s purposes only, agree that the whole contract is valid and rely on your argument that I shouldn’t enforce it. MS. MCGINTY: I’m not prepared to give up the other argument, and I’ll tell you why. ... [Emphasis added] ... THE COURT: Are you -- are you changing your position in any way? MS. MCGINTY: Not at all. [Emphasis added] ... THE COURT: I realize that that – that doesn’t square with what I said in an earlier hearing. But I’m saying on reflection, now that I’m faced with it, and especially since I’ve had the benefit of both of your briefs, including your brief about lack of enforcement of these valid contracts, I think that the more sensible approach now, with the reflection of all that, is to assume that the entire contract is valid, and focus on whether or not I should ignore that particular clause. And by the way, I may decide to reject jurisdiction in your client’s favour for completely different reasons. [Emphasis added] ... MS. MCGINTY: Well, I certainly want Your Lordship be comfortable, if he’s hearing what he needs to hear, in order to adjudicate this. I’m not prepared to give up that argument, but I accept that you need to hear that evidence on a broader scale. [Emphasis added] [323] On the final day of the hearing, August 24, 2012, on the first page of her transcribed closing submissions, Ms. Armoyan’s counsel said: We’re not assuming that the forum selection clause is valid ... [Emphasis added] [324] Despite the judge’s prompting (especially on October 24, 2011), Ms. Armoyan’s counsel could not have been more explicit. Ms. Armoyan did not “present” any “presumption” that the forum selection clause was valid. Rather it was the judge who, on October 24, 2011, the first day of what became a nine day trial, informed Ms. Armoyan’s counsel that he intended to “assume that the entire contract is valid”, despite Ms. Armoyan’s opposition respecting the forum selection clause. The judge’s statement in his Addendum Decision (para 71) that “the jurisdiction issue was presented on the presumption that the marriage contract is valid” should have added the words “except for the forum selection clause, which Ms. Armoyan did not present on that presumption”. [325] In his Addendum Decision of September 14, 2012, the judge used the forum selection clause as alternative support for his ruling that Nova Scotia was the appropriate forum. He did this, without ruling on validity, but based on his finding of fact that the parties, including Ms. Armoyan, had “presented” a “presumption” of the clause’s validity to the Court. Ms. Armoyan made no such presentation and agreed to no such presumption for the forum selection clause. The judge made a palpable and overriding error of fact. [326] Second: The second problem is legal. In the Court of Appeal, Mr. Armoyan submits that the “strong cause” doctrine, endorsed by Z.I. Pompey Industrie v. ECU-Line N.V., [2003] 1 S.C.R. 450 and Momentous.ca Corp. v. Canadian American Association of Professional Baseball Ltd., [2012] 1 S.C.R. 359, supports the selection of Nova Scotia under the forum selection clause. These authorities considered the effect of forum selection clauses in commercial contracts. Both parties cited Z.I. Pompey to Justice Campbell. [327] Momentous, para 9, adopted the test from Z.I. Pompey. [328] In Z.I. Pompey, Justice Bastarache for the Court approved the “strong cause” test: 19 ... For some time, the exercise of this judicial discretion [in s. 50(1) of the Federal Court Act] has been governed by the “strong cause” test when a party brings a motion for a stay of proceedings to enforce a forum selection clause in a bill of lading. Brandon J. set out the test as follows in The Eleftheria [The “Eleftheria”, [1969] 1 Lloyd’s Rep. 237], at p. 242: (1) Where plaintiffs sue in England in breach of an agreement to refer disputes to a foreign Court, and the defendants apply for a stay, the English Court, assuming the claim to be otherwise within the jurisdiction, is not bound to grant a stay but has a discretion whether to do so or not. (2) The discretion should be exercised by granting a stay unless strong cause for not doing so is shown. (3) The burden of proving such strong cause is on the plaintiffs. (4) In exercising its discretion the Court should take into account all the circumstances of the particular case. (5) In particular, but without prejudice to (4), the following matters, where they arise, may be properly regarded: (a) In what country the evidence on the issues of fact is situated, or more readily available, and the effect of that on the relative convenience and expense of trial as between the English and foreign Courts. (b) Whether the law of the foreign Court applies and, if so, whether it differs from English law in any material respects. (c) With what country either party is connected, and how closely. (d) Whether the defendants genuinely desire trial in the foreign country, or are only seeking procedural advantages. (e) Whether the plaintiffs would be prejudiced by having to sue in the foreign Court because they would (i) be deprived of security for that claim; (ii) be unable to enforce any judgment obtained; (iii) be faced with a time-bar not applicable in England; or (iv) for political, racial, religious or other reasons be unlikely to get a fair trial. 20 ... In the context of international commerce, order and fairness have been achieved at least in part by application of the “strong cause” test. This test rightly imposes the burden on the plaintiff to satisfy the court that there is good reason it should not be bound by the forum selection clause. It is essential that courts give full weight to the desirability of holding contracting parties to their agreements. There is no reason to consider forum selection clauses to be non-responsibility clauses in disguise. In any event, the “strong cause” test provides sufficient leeway for judges to take improper motives into consideration in relevant cases and prevent defendants from relying on forum selection clauses to gain an unfair procedural advantage. 21 There is a similarity between the factors which are to be taken into account when considering an application for a stay based on a forum selection clause and those factors which are weighed by a court considering whether to stay proceedings in “ordinary” cases applying the forum non conveniens doctrine: [citations omitted] ... In the latter inquiry, the burden is normally on the defendant to show why a stay should be granted, but the presence of a forum selection clause in the former is, in my view, sufficiently important to warrant a different test, one where the starting point is that parties should be held to their bargain, and where the plaintiff has the burden of showing why a stay should not be granted. I am not convinced that a unified approach to forum non conveniens, where a choice of jurisdiction clause constitutes but one factor to be considered, is preferable. ... 29 Bills of lading are typically entered into by sophisticated parties familiar with the negotiation of maritime shipping transactions who should, in normal circumstances, be held to their bargain. ... 31 ... The “strong cause” test, once it is determined that the bill of lading otherwise binds the parties (for instance, that the bill of lading as it relates to jurisdiction does not offend public policy, was not the product of fraud or of grossly uneven bargaining positions), constitutes an inquiry into questions such as the convenience of the parties, fairness between the parties and the interests of justice, not of the substantive legal issues underlying the dispute. [Emphasis added] [329] In Z.I. Pompey, para 31, Justice Bastarache said that, before inquiring into convenience, fairness and the interests of justice for “strong cause”, the court should first determine any issues whether the contract does not bind the parties because the contract was the product of fraud or grossly uneven bargaining positions. To similar effect: Expedition Helicopters Inc. v. Honeywell Inc., 2010 ONCA 351, para 24. Ms. Armoyan challenges the forum selection clause’s validity based on allegations of fraud, including that Mr. Armoyan fraudulently failed to disclose financial information that would have affected the advice to Ms. Armoyan from her independent legal counsel. Ms. Armoyan was entitled to have the validity of the forum selection clause determined before the forum selection clause was utilized to support Nova Scotia over Florida as the appropriate forum. [330] That determination did not occur. Justice Campbell utilized the forum selection clause to support his choice of Nova Scotia as the forum. He did not first rule on the merits of Ms. Armoyan’s challenge to its validity. In my view, the judge erred in law by not following the approach set out in Z.I. Pompey, which was cited by both parties in argument to the judge. [331] So the next question is - What should the Court of Appeal do with the forum selection clause? To answer that question, the first issue is whether the Florida Divorce Judgment has rendered the invalidity of the forum selection clause res judicata, or subject to issue estoppel. If not, the second issue is whether the forum selection clause is invalid. If the forum selection clause is valid, the third question is whether the clause is determinative under the principles in Z.I. Pompey. I will discuss these in turn. (i) Res Judicata/Issue Estoppel [332] In the Florida Divorce Judgment of October 26, 2012, the Circuit Court determined the validity of the forum selection clause. The Circuit Court held that the Marital Agreement is void for fraud (above, paras 79 and 80 - see paras 20-26 and 40 of the Florida Decision). The Circuit Court’s Decision (paras 20-26) reviews the evidence of Mr. and Ms. Armoyan, of counsel for Mr. Armoyan, of counsel for Ms. Armoyan, and of other witnesses listed in the Decision, and explains the basis for the finding of fraud. That basis was deliberate non-disclosure and misrepresentation of financial information by Mr. Armoyan to Ms. Armoyan and to her lawyer. The Decision concludes: 40. The Contract between the parties known as the Agreement Dealing with Matrimonial Relationship, Assets and all Matters Related Thereto, is found by this Court to be void abinitio as stated above (and is reincorporated in the decretal paragraphs below). Therefore, this Court is not precluded from addressing the Agreement or lack thereof based upon any prohibition as to a forum selection clause or a forum non conveniens clause as a bar as claimed by the Husband. Later in the Decision’s summary, the Court ordered (above, para 80): This Court finds that the Husband’s claim that there was a valid and binding contract styled Agreement Dealing with Matrimonial Relationship, Assets and all Matters Related Thereto between the parties entered on March 1, 2008 is denied based upon fraud in the formation of the agreement and fraud upon this Court, as well as above findings and conclusions as stated. [333] Is the invalidity of the forum selection clause res judicata or subject to issue estoppel in Nova Scotia because of the Florida Court’s ruling? [334] This Court requested that the parties file post-hearing briefs on this issue. Each party then filed submissions. These reasons are written with the benefit of those helpful submissions. [335] In Hoque v. Montreal Trust Co. of Canada, [1997] N.S.J. No. 430 (C.A.) (Q.L.), leave to appeal denied [1997] S.C.C.A. No. 656, Justice Cromwell for the Court explained the rationale for res judicata: 20 Res judicata has two main branches: cause of action estoppel and issue estoppel. They were explained by Dickson, J. (as he then was) in Angle v. M.N.R., [1975] 2 S.C.R. 248; 2 N.R. 397; 47 D.L.R. (3d) 544 at 555 [D.L.R.] (Q.L.): “... The first, ‘cause of action estoppel’, precludes a person from bringing an action against another when that same cause of action has been determined in earlier proceedings by a Court of competent jurisdiction. ..... The second species of estoppel per rem judicatam is known as ‘issue estoppel’, a phrase coined by Higgins, J., of the High Court of Australia in Hoysted et al. v. Federal Commissioner of Taxation (1921), 29 C.L.R. 537 at pp. 560‑1: I fully recognize the distinction between the doctrine of res judicata where another action is brought for the same cause of action as has been the subject of previous adjudication, and the doctrine of estoppel where, the cause of action being different, some point or issue of fact has already been decided (I may call it "issue‑estoppel"). 21 Res judicata is mainly concerned with two principles. First, there is a principle that "... prevents the contradiction of that which was determined in the previous litigation, by prohibiting the relitigation of issues already actually addressed." : see Sopinka, Lederman and Bryant, The Law of Evidence in Canada (1991) at p. 997. The second principle is that parties must bring forward all of the claims and defences with respect to the cause of action at issue in the first proceeding and that, if they fail to do so, they will be barred from asserting them in a subsequent action. This "...prevents fragmentation of litigation by prohibiting the litigation of matters that were never actually addressed in the previous litigation, but which properly belonged to it.": ibid at 998. Cause of action estoppel is usually concerned with the application of this second principle because its operation bars all of the issues properly belonging to the earlier litigation. ... 23 Res judicata requires that the previous court decision be final and between the same parties or their privies. ... [336] This Court has regularly applied Hoque: Kameka v. Williams, 2009 NSCA 107, para 18 and para 1 of concurring reasons; Saulnier v. Bain, 2009 NSCA 51, para 6; Can-Euro Investments Ltd. v. Industrial Alliance Insurance and Financial Services Inc, 2013 NSCA 76, para 31. [337] In Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R. 460, Justice Binnie for the Court set out the authoritative test. First, there are three pre-conditions: 24 Issue estoppel was more particularly defined by Middleton J.A. of the Ontario Court of Appeal in McIntosh v. Parent, [1924] 4 D.L.R. 420, at p. 422: When a question is litigated, the judgment of the Court is a final determination as between the parties and their privies. Any right, question, or fact distinctly put in issue and directly determined by a Court of competent jurisdiction as a ground of recovery, or as an answer to a claim set up, cannot be re-tried in a subsequent suit between the same parties or their privies, though for a different cause of action. The right, question, or fact, once determined, must, as between them, be taken to be conclusively established so long as the judgment remains. ... [Justice Binnie’s underlining] 25 The preconditions to the operation of issue estoppel were set out by Dickson J. in Angle [Angle v. Minister of National Revenue, [1975] 2 S.C.R. 248], at p. 254: (1) that the same question has been decided; (2) that the judicial decision that is said to create the estoppel was final; and, (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies. [338] When the three pre-conditions are satisfied, the court retains a discretion whether to apply issue estoppel to the case at hand. In Danyluk the question was whether a decision of an administrative employment standards officer generated an issue estoppel for a subsequent court action. Justice Binnie said: 19 Finality is thus a compelling consideration and judicial decisions should generally be conclusive of the issues decided unless and until reversed on appeal. However, estoppel is a doctrine of public policy that is designed to advance the interests of justice. Where as here, its application bars the courthouse door against the appellant’s $300,000 claim because of an administrative decision taken in a manner which was manifestly improper and unfair (as found by the Court of Appeal itself), a re-examination of some basic principles is warranted. ... 33 The rules governing issue estoppel should not be mechanically applied. The underlying purpose is to balance the public interest in the finality of litigation with the public interest in ensuring that justice is done in the facts of a particular case. (There are corresponding private interests.) The first step is to determine whether the moving party (in this case the respondent) has established the preconditions to the operation of issue estoppel set out by Dickson J. in Angle, supra. If successful, the court must still determine whether, as a matter of discretion, issue estoppel ought to be applied: [citations omitted] [Justice Binnie’s emphasis] ... 62 The appellant submitted that the Court should nevertheless refuse to apply estoppel as a matter of discretion. There is no doubt that such a discretion exists. In General Motors of Canada Ltd. v. Naken, [1983] 1 S.C.R. 72, Estey J. noted, at p. 101, that in the context of court proceedings “such a discretion must be very limited in application”. In my view the discretion is necessarily broader in relation to the prior decisions of administrative tribunals because of the enormous range and diversity of the structures, mandates and procedures of administrative decision makers. 63 In Bugbusters [British Columbia (Minister of Forests) v. Bugbusters Pest Management Inc. (1998), 50 B.C.L.R. (3d) 1], Finch J.A. (now C.J.B.C.) observed, at para 32: It must always be remembered that although the three requirements for issue estoppel must be satisfied before it can apply, the fact that they may be satisfied does not automatically give rise to its application. Issue estoppel is an equitable doctrine, and as can be seen from the cases, is closely related to abuse of process. The doctrine of issue estoppel is designed as an implement of justice, and a protection against injustice. It inevitably calls upon the exercise of a judicial discretion to achieve fairness according to the circumstances of each case. Apart from noting parenthetically that estoppel per rem judicatem is generally considered a common law doctrine (unlike promissory estoppel which is clearly equitable in origin), I think this is a correct statement of the law. ... [339] As to criteria governing the discretion, Justice Binnie said (para 67) that “[t]he list of factors is open”. He listed seven factors applicable to Danyluk. Most of those pertained to the context of an administrative tribunal’s decision, and are inapplicable to the decision of the Florida Court in the Armoyans’ case. Included in Justice Binnie’s factors were the availability of an appeal and, finally, “the potential injustice”. Mr. Armoyan had an available appeal from the Florida Divorce Judgment, but decided not to exercise it. As to potential injustice, Justice Binnie added: 80 As a final and most important factor, the Court should stand back and, taking into account the entirety of the circumstances, consider whether application of issue estoppel in the particular case would work an injustice. Rosenburg J.A. concluded that the appellant had received neither notice of the respondent’s allegation nor an opportunity to respond. He was thus confronted with the problem identified by Jackson J.A., dissenting, in Iron v. Saskatchewan (Minister of the Environment & Public Safety), [1993] 6 W.W.R. 1 (Sask. C.A.), at p. 21: The doctrine of res judicata, being a means of doing justice between the parties in the context of the adversarial system, carries within its tenets the seeds of injustice, particularly in relation to issues of allowing parties to be heard. Whatever the appellant’s various procedural mistakes in this case, the stubborn fact remains that her claim to commissions worth $300,000 has simply never been properly considered and adjudicated. 81 On considering the cumulative effect of the foregoing factors it is my view that the Court in its discretion should refuse to apply issue estoppel in this case. [340] In Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77, Justice Arbour for the majority (para 23) reiterated Danyluk’s pre-conditions and added the following comments pertaining to Danyluk’s discussion of “injustice” as a discretionary criterion: 52 In contrast, proper review by way of appeal increases confidence in the ultimate result and affirms both the authority of the process as well as the finality of the result. It is therefore apparent that from the system’s point of view, relitigation carries serious detrimental effects and should be avoided unless the circumstances dictate that relitigation is in fact necessary to enhance the credibility and the effectiveness of the adjudicative process as a whole. There may be instances where relitigation will enhance, rather than impeach, the integrity of the judicial system, for example: (1) when the first proceeding is tainted by fraud or dishonesty; (2) when fresh, new evidence, previously unavailable, conclusively impeaches the original results; or (3) when fairness dictates that the original result should not be binding in the new context. This was stated unequivocally by this Court in Danyluk, supra, at para 80. 53 The discretionary factors that apply to prevent the doctrine of issue estoppel from operating in an unjust or unfair way are equally available to prevent the doctrine of abuse of process from achieving a similar undesirable result. There are many circumstances in which the bar against relitigation, either through the doctrine of res judicata or that of abuse of process, would create unfairness. If, for instance, the stakes in the original proceeding were too minor to generate a full and robust response, while the subsequent stakes were considerable, fairness would dictate that the administration of justice would be better served by permitting the second proceeding to go forward than by insisting that finality should prevail. An inadequate incentive to defend, the discovery of new evidence in appropriate circumstances, or a tainted original process may all overcome the interest in maintaining the finality of the original decision [citations omitted]. [341] In Wright v. Nova Scotia (Public Service Long Term Disability Plan Trust Fund), 2006 NSCA 101, Justice Cromwell for the Court applied Danyluk’s principles. The initial ruling, that allegedly established the issue estoppel, was by an administrative tribunal - a medical appeal board that decided not to continue disability benefits. Justice Cromwell said that this ruling did not bar the subsequent action in Court. Respecting “potential injustice”, governing the residual discretion, Justice Cromwell said: [105] This factor requires “... the Court ... [to] stand back and, taking into account the entirety of the circumstances, consider whether the application of issue estoppel in the particular case would work an injustice”: Danyluk at para 80. [106] So far as one can tell from the record, there has never been any proper consideration by a neutral party of whether Mr. Wright was disabled within the meaning of the “any occupation” definition in the Plan. It appears that his court action was the only way that could occur. The matter did not fall squarely within either the expertise or the terms of reference of the medical appeal board and, in the circumstances of this case, there was no other adequate remedy. ... [108] In my view, this is a case in which the court’s discretion should be exercised to disallow the plea of issue estoppel. ... [342] I will apply the above principles to the Florida Court’s ruling that the forum selection clause was void. [343] First, Danyluk’s pre-conditions: (a) The Florida divorce proceeding was between the same parties as the Nova Scotia divorce proceeding. (b) The validity issue, respecting the forum selection clause, is the same as in Nova Scotia. (c) The Florida Divorce Judgment of October 26, 2012 was issued by the Florida Circuit Court, a “judicial” tribunal as discussed in Danyluk [paras 25(2), 42-53, 56]. (d) The Florida Court’s ruling of invalidity (quoted above, para 332) is unequivocal and final. Mr. Armoyan submits that the Florida Court retained jurisdiction to vary “equitable distribution” or division of matrimonial property. That is correct, because Mr. Armoyan’s non-disclosure had “stymied” the Florida Court’s analysis of division of assets (above, paras 148-52). But this does not alter the finality of the Florida Court’s ruling that the forum selection clause was invalid. Finality for issue estoppel applies to the issue in question, and “[a] decision that is final for the purpose of issue estoppel may be a decision that does not necessarily determine the entire subject matter of the litigation”: Donald J. Lange, The Doctrine of Res Judicata in Canada, 3rd ed (LexisNexis Canada: Markham, Ontario, 2010), page 95. The pre-conditions in Danyluk’s first step are met. [344] I will turn to Danyluk’s second step - the discretion not to apply issue estoppel. [345] We have a decision of a Court. Danyluk and Wright, where the discretion was exercised, involved decisions of administrative tribunals. In Danyluk and in General Motors, quoted in Danyluk (para 62), the Supreme Court said that the “discretion must be very limited in application” to a decision of a court. [346] The pivotal criterion, from Danyluk’s non-exclusive list, is the “potential for injustice”. Mr. Armoyan submits that it would be unjust to apply Florida’s October 26, 2012 ruling on the invalidity of the forum selection clause, because Mr. Armoyan relied on Justice Campbell’s rulings of September 5 and 14, 2012 that Nova Scotia would exercise jurisdiction. I respectfully disagree. First, on September 18, 2012, Ms. Armoyan appealed Justice Campbell’s forum non conveniens ruling, meaning that the risk of reversal was in play. Second, apart from that appeal, Mr. Armoyan had walked away from the Florida proceeding well before Justice Campbell’s rulings of September 5 and 14, 2012. I will elaborate on the second point. [347] The circumstances in the Armoyans’ case are not those of Danyluk, where “the appellant had received neither notice of the respondent’s allegation nor an opportunity to respond”. Neither are they the circumstances of Wright, where “there has never been any proper consideration by a neutral party” of the issue and where “[t]he matter did not fall squarely within either the expertise or the terms of reference” of the tribunal. Justice Arbour’s examples from C.U.P.E., paras 52-53, do not apply. [348] In the Armoyans’ case: (a) Mr. Armoyan was served with the Petition in Florida. He initiated proceedings in Florida. He engaged in those proceedings for over two years until January 2012, when his Stay of the Florida proceedings expired with the dismissal of his Disqualification Motion (above paras 32-33). He gave a stipulation to the Florida Court. He had notice of the Florida divorce hearing, and an opportunity to participate. He decided not to participate. Had he appeared, no doubt he would have been required to satisfy his defaulted arrears under the Interim Support Order and his defaulted costs orders. He averted that consequence by avoiding the hearing. (b) Mr. Armoyan had a right to appeal the Florida Divorce Judgment. He decided not to appeal, and the time limit for an appeal has passed. (c) The Florida Court’s divorce hearing followed directly from the Florida Court’s Order of April 4, 2012 (above, para 75), which determined that it would exercise jurisdiction. That April 4, 2012 Order was further to Mr. Armoyan’s motion in which he cited the Marital Agreement’s forum selection clause as a bar to the Florida Court’s jurisdiction. His Notice of Motion of November 10, 2009 said: 8. The husband and the wife executed a binding marital settlement agreement (the “Agreement”) in Canada on March 1, 2008. That Agreement contains a mandatory and binding forum selection clause requiring all disputes to be litigated in Nova Scotia, Canada. (d) The Florida Court’s Order of April 4, 2012 noted: The Husband failed to appear for the hearing on this issue including, but not limited to, his failure to appear based upon an Order to Show Cause by this Court where his personal presence was, in fact, mandated. Mr. Armoyan had notice of that April 4 hearing, and his “personal presence was ... mandated”. Had he appeared, he would have had to answer for his defaults under the various Florida Orders for support and costs. He chose not to appear at the hearing of his own motion, where forum selection would be determined further to his request that the Florida Court apply the forum selection clause. The Florida Court’s Order of April 4, 2012 then rejected Mr. Armoyan’s jurisdictional and forum non conveniens motion, and ordered that “this Court has subject matter jurisdiction over” the matrimonial issues, including “the ability to determine the validity of a certain marital settlement agreement dated March 1, 2008". (e) The Florida Court’s ruling on the validity and application of the forum selection clause was within the judicial expertise of that Court and squarely before that Court as a condition precedent to the Court’s exercise of its jurisdiction to consider the merits of the divorce. (f) Mr. Armoyan’s abandonment of the Florida proceedings was apparent by mid-February 2012. On January 4, 2012 he failed to appear at the hearing that was scheduled to hear his testimony on his motion to disqualify Ms. Armoyan’s counsel and forensic accountant. Next he defaulted on the February 1, 2012 payment under the Interim Support Order, a default that continued in the months thereafter. Then, on February 14, 2012, both his Florida counsel formally withdrew from the record, on the basis that Mr. Armoyan would be served at his Halifax address (above, paras 30, 59, 61). These events predated Justice Campbell’s rulings on the Nova Scotia adjournment (February 24, 2012) and forum non conveniens in September 2012. [349] Mr. Armoyan was no unwitting ingénue, whose forum selection submission slipped between the cracks of Florida’s litigation process. His submissions, on the forum selection clause, needn’t be lifted to Nova Scotia’s sunlight for access to a proper judicial airing, once and for all. He had every opportunity to participate in the Florida litigation on forum selection, or any other subject. As Judge Martz said in the Florida Divorce Judgment (above, para 79), para 11(d): ... While the Husband proceeded to delay (and misrepresent to this Court his purpose of the delay) nevertheless, this Court permitted the Husband his full plenary due process rights before this Court; so as to permit the Husband to raise any claims he desired for any purpose in support of any position the Husband had for any reasons; as it pertained to any issue adjudicated previously; as well as any order or finding. And, the Husband was permitted to address the same plenary before this Final Judgment and at the trial of this cause before the entry of this Final Judgment. After delaying the Florida proceeding for as long as possible, with the Stay that expired in January 2012, Mr. Armoyan turned his back on the Florida Court. He did this well before Justice Campbell’s Decisions of September 5 and 14, 2012 that Nova Scotia would exercise jurisdiction. Nothing distinguishes Mr. Armoyan as a victim of “injustice” or justifies the “very limited” exercise of judicial discretion to oust the issue estoppel that follows a court’s decision. [350] Lastly, there is the question whether the res judicata, or issue estoppel analysis is affected by the fact that the Florida Divorce Judgment is an order of a foreign court, instead of a Nova Scotia court. In this respect, it is important to distinguish recognition from enforcement. The Court of Appeal is not considering whether to “enforce” the support obligations in the Florida Divorce Judgment. Enforcement must follow the process in the ISO Act. That process is underway in another proceeding (above, paras 129, 298-303). [351] This Court is dealing with recognition to preclude relitigation. That matter turns on both the common law principles of res judicata or issue estoppel, that I have discussed, and the common law respecting recognition of foreign judgments, subject to any legislative directions. Castel, para 14.1 says: ... However, when the court is being asked only to recognize the judgment for the purposes of precluding a party from relitigating a claim or issue, the court will apply the same principles of res judicata or issue estoppel that are applied in local proceedings. [citing Danyluk’s test] ... At common law, little distinction is made between judgments rendered in other provinces and territories of Canada, and foreign judgments. ... See also CLE Owners Inc.et al v. Wanlass et al, 2004 MBQB 43, paras 34-40, affirmed 2005 MBCA 32, paras 13, 26, leave to appeal denied [2005] S.C.C.A. No. 224; Law v. Hansen (1895), 25 S.C.R. 69, at p. 72. [352] At common law, a foreign judgment is recognizable in a Canadian court if there was a real and substantial connection between the matter and the foreign jurisdiction. This is subject to the defences of natural justice, public policy and fraud. The natural justice inquiry does not re-examine the merits, and generally requires that the party be given adequate notice and an opportunity to defend. The public policy defence obtains when the foreign judgment is based on a law that contravenes the “fundamental morality of the Canadian legal system”, or is “repugnant”, “corrupt or biassed”. Beals v. Saldanha, [2003] 3 S.C.R. 416, paras 19, 35, 64-65, 71-72. [353] The Florida connections to Ms. Armoyan and the children that I have discussed (above, paras 23-24, 75, 244, 268-70, 304-09), would satisfy the “real and substantial connection” test. As discussed (paras 61, 78, 348-9), Mr. Armoyan was given notice of the Florida Divorce hearing, had an opportunity to be heard, and there is no denial of natural justice involved with this Florida Divorce Judgment. There is no fraud in the Florida process. The Florida Divorce Judgment is not based on a law that contravenes a tenet of fundamental morality of the Canadian legal system. Section 22(3) of the Divorce Act preserves the common law test of real and substantial connection: Orabi v. Qaoud, 2005 NSCA 28, para 14. I would recognize the Florida Court’s ruling on the forum selection clause based on the real and substantial connection test, and s. 22(3). [354] Apart from the common law’s standard of real and substantial connection, there is a statutory standard that governs recognition, for the purpose of avoiding relitigation. According to s. 22(1) of the Divorce Act, given Ms. Armoyan’s ordinary residence in Florida for one year before her Petition, the Florida Court’s dissolution of the marriage “shall be recognized for all purposes”. “All purposes” includes this appeal. So this Court must recognize the Florida divorce to determine the marital status of the Armoyans. The Florida Court’s determination of the forum selection clause’s validity or invalidity was a prerequisite to the Florida Court’s consideration of the dissolution of the marriage. It is impossible to recognize Florida’s dissolution of the marriage while, at the same time, challenging the Florida Court’s underlying ruling that the forum selection clause was invalid, so the Florida’s Court could consider whether to dissolve the marriage. As Justice Binnie said in Danyluk, para 59, “[t]he estoppel, in other words, extends to the issues of fact, law, and mixed fact and law that are necessarily bound up with the determination of that ‘issue’ in the prior proceeding”. [355] For those reasons, in my view, the forum selection clause of the Marital Agreement is void by reason of res judicata or issue estoppel that arises from the determination of the Florida Circuit Court. [356] I limit my comments to the forum selection clause, as that was the only provision whose validity was before the Family Division in the proceeding under appeal. I say nothing on the validity of, or the impact of res judicata or issue estoppel on, other provisions of the Marital Agreement, because the validity of those provisions was not before the Family Division in the matter that is under appeal. In the upcoming proceeding for division of assets under the Matrimonial Property Act, the Family Division will have to turn its attention to the validity of the other provisions of the Marital Agreement, and to the potential impact of the Florida Divorce Judgment of October 26, 2012 on those provisions, under the principles of res judicata, issue estoppel, Danyluk’s criteria and the recognition of foreign judgments. (ii) Validity of Forum Selection Clause - Merits of Issue [357] Given the invalidity of the forum selection clause under principles of res judicata, it is unnecessary that this Court consider the merits of whether that clause is valid. [358] Had the issue not been res judicata, I would have remitted that issue for a new trial, with entirely new evidence, before another judge of the Family Division. Justice Campbell’s Decision committed to the presumption that the forum selection clause was valid, at the outset of a trial before the evidence was heard, and despite the disagreement of one of the parties. It is impossible to determine how that declaration pre-empted or affected the subsequent presentation of evidence or submissions by either party. So the issue would have to be retried. Given the judge’s commitment to the clause’s presumed validity, it would be appropriate that a different judge preside at a new hearing. (iii) Strong Cause Doctrine [359] Given the invalidity of the forum selection clause under the principles of res judicata, it is unnecessary, as stated in Z.I. Pompey (para 31), that I consider the merits of the “strong cause” doctrine. [360] Nonetheless, in response to Mr. Armoyan’s submissions to this Court, I will in the alternative address the “strong cause” doctrine. As explained in Z.I. Pompey, the doctrine encumbers Ms. Armoyan with a significant onus to justify any departure from the contractually selected forum. In my view, Ms. Armoyan has satisfied the onus to show strong cause that, under Z.I. Pompey’s approach, principles of convenience, fairness and the interests of justice establish Florida as the forum for the issues other than division of matrimonial property. Particulars of my reasoning are set out at great length elsewhere in the analysis of the Forum Non Conveniens Appeal, and I will not repeat those particulars here. 8. Fourth Issue - Admissibility of Evidence [361] As mentioned earlier (para 120), on August 22, 2012, Ms. Armoyan’s counsel sought to cross-examine Mr. Armoyan with an email that was included in the package of documents which Ms. Armoyan had cloned from Mr. Armoyan’s computer. From counsel’s submissions to Justice Campbell, it appears that the document was cloned in Florida, in autumn 2009, and was included with the documents that had been reviewed for privilege by the Florida Special Master (above, para 27). [362] Mr. Armoyan’s counsel objected. He did not assert privilege. He said that the admission of the document, or its use in cross-examination of Mr. Armoyan, would offend public policy, because of Ms. Armoyan’s improper conduct in cloning the computer hard drive without Mr. Armoyan’s consent. Mr. Armoyan’s counsel cited several authorities. He particularly emphasized the recent decision of the Ontario Court of Appeal in Jones v. Tsige, 2012 ONCA 32, which discussed the tort of intrusion on seclusion. He also submitted that the document was irrelevant and without probative value. [363] Ms. Armoyan’s counsel submitted that generally, under Canadian evidence law, with limited exceptions such as a Charter breach or an improperly obtained confession in a prosecution, relevant evidence is admissible regardless of its method of acquisition. She said that the document was relevant to the issue of Mr. Armoyan’s “ordinary residence”. [364] Justice Campbell looked at the document, before his ruling. The document was not entered into evidence, nor marked for identification even provisionally for voir dire purposes. The document is not in the Appeal Books for this appeal. [365] The judge upheld the objection and directed that the document not be used. Ms. Armoyan appeals from that ruling. [366] The judge’s oral reasons of August 22, 2012 include: In many situations where an objection is made, I find it possible to simply give my ruling and move on, and in the interests of time, I might have been motivated to do just that, but I think that this particular objection has a likelihood of being repeated depending on what documents are being tendered in the future, and therefore, it probably deserves my expanding upon my ruling by giving some reasons. ... And let me say as an aside that I’m keenly aware of the fact that counsel for Ms. Armoyan contends that there was no impropriety in the taking of the documents, that it was in fact a family computer in part, that she had access to it and its passwords, and that lastly she was motivated by what she believes to be a very secretive approach by Mr. Armoyan to his information and that her access through conventional means to this information would have been unlikely to be successful. ... So as I read all of these authorities and authors, I find myself concluding that the matter comes down to a balancing of the need to preserve the ability for competing parties to obtain complete and full disclosure of information that will be relevant to the outcome of the case. I said, “balancing,” and I would be - and I need to balance that against a somewhat conflicting philosophy of privacy and indeed public policy in the type quoted from the last quoted decision. By that, I mean that on the one hand, I should not make a ruling that would allow litigants in family law to fail to disclose relevant information or indeed to hide it from the other party with the Court’s blessing. And then on the other hand, I have to recognize that it is important for parties to be able to rebuild, at least for the sake of their children, their post-breakup relationship. I accept the notion that I am not -- I accept the notion that if I should conclude that the information was obtained improperly, that I’m not thereby bound to exclude it from admission into the Court’s file. I have a discretion to do so, and it may be relevant to the exercise of that discretion to take into account any impropriety. ... So I’ve concluded that the document is not going to be admissible. My first reason is because of the fact that I have a discretion to take a look at the impropriety by which the document was obtained, recognizing that I’m not bound to that conclusion by that principle. If I had not reached that conclusion, however, I would have taken - made an analysis of the relevance and probative value of this particular document. ... So if I hadn’t reached the conclusion with respect to the method of acquisition of the document, I would have been likely to exclude this particular document on the basis of its lack of relevance and probative value. ... [367] In my opinion, the admissibility of this particular document is now moot, given the result of the Forum Non Conveniens Appeal. In any case, without having the document in the Appeal Books, even provisionally as a voir dire document, it is impossible for an Appeal Court to reconsider Justice Campbell’s alternative basis for exclusion - i.e. its lack of probative value and relevance. [368] For those reasons, I would dismiss this ground of appeal. [369] But I agree with Justice Campbell’s comment, quoted earlier, that “this particular objection has a likelihood of being repeated”. It appears likely that, during the upcoming hearing on property division under the Matrimonial Property Act, the use of the cloned documents will again be an issue. As guidance, I offer the following comments. [370] First: In a similar situation, the document should be marked for identification on a voir dire basis. Then, if there is an appeal, the document would be included in the appeal record on the same provisional basis, and the Court of Appeal would have the same opportunity to read the document as did the judge whose decision is appealed. [371] Second: As noted earlier (para 95), on March 17, 2010, Justice Moir ruled that, notwithstanding Nova Scotia’s jurisdiction simpliciter, Florida was the convenient forum for consideration of the legal consequences of the alleged impropriety of the cloning that occurred in Florida (2010 NSSC 102). Armco appealed to this Court but, before the hearing, discontinued its appeal of the forum non conveniens issue. The Court of Appeal then considered other issues (2011 NSCA 22). For purposes of res judicata, Armco and Mr. Armoyan would be privies. [372] If alleged tortious conduct or impropriety that occurred in Florida, from Ms. Armoyan’s cloning activity in Florida, pertains to admissibility of documents that are tendered in the upcoming proceeding in the Family Division, then it will be necessary that the judge of the Family Division address: (1) whether, from Justice Moir’s Decision, it is now res judicata that Florida, not Nova Scotia, is the appropriate forum for that issue; (2) how the Florida Courts have ruled on that alleged tortious conduct or impropriety; and (3) what recognition the Nova Scotia Court should give to any such Florida rulings. I am not expressing a view about how those questions should be answered. But the questions should be addressed. [373] Third: Justice Campbell said that the law of evidence in Canada includes the principle that, where evidence is improperly obtained, a judge has the discretion to exclude it based on a balance of the need for disclosure against a public policy favouring privacy. The judge said this principle applies generally, and not merely to those topics, such as a Charter breach involving s. 24(1) and improperly obtained confessions, where the principle is well established. His ruling was not based on the law of privilege, as privilege was not asserted for the document in question. [374] I emphasize that my dismissal of this ground of appeal is based on mootness, and the unavailability of the document in the Appeal Books, as stated earlier. My reasons should not be interpreted as endorsing the merits of the judge’s statement on the law of civil evidence. [375] Alan W. Bryant, Sidney N. Lederman, & Michelle K. Fuerst, The Law of Evidence in Canada, 3rd ed, (LexisNexis Canada: Markham, Ontario, 2009) opens the chapter entitled “Illegally Obtained Evidence”, with (para 9.1): The manner in which evidence is obtained, no matter how improper or illegal, is not an impediment to its admission at common law. The point was put starkly by Crompton J. in England in the 19th century: “It matters not how you get it; if you steal it even it would be admissible in evidence.” This position remains the common law of both England and Canada. The chapter then explains exceptions to the rule, principally under the Charter and in the criminal law. I take this passage, followed by the text’s discussion of the exceptions, as an accurate statement of the law respecting the admissibility of illegally obtained evidence in 2009. I express no view whether more recent authorities, including those cited by Justice Campbell’s decision, have changed the law stated by Sopinka, Lederman & Bryant’s 2009 text. That topic may be worthy of exploration if the matter arises at the matrimonial property hearing. Neither do I comment on the law of privilege, including privilege related to confidential communications (see Sopinka, Lederman & Bryant, pp. 913 ff). 9. Conclusion [376] I would grant leave to appeal, and allow the Adjournment Appeal by excising Condition #2 from the Supreme Court (Family Division)’s Order of March 13, 2012. I would order that Mr. Armoyan pay to Ms. Armoyan costs for that appeal. [377] I would grant leave to appeal and allow the Forum Non Conveniens Appeal, and substitute an Order that (1) stays the proceedings in the Nova Scotia Supreme Court (Family Division) under the Divorce Act, including the proceedings for dissolution of the marriage and collateral relief, custody, child support and spousal support, and (2) stays the proceedings to register the Matrimonial Agreement. I would grant leave to appeal, but dismiss the Forum Non Conveniens Appeal, and deny the stay with respect to the proceeding under the Matrimonial Property Act for the division of matrimonial property. [378] I would award Ms. Armoyan costs of the Forum Non Conveniens Appeal, in both this Court and the proceeding in the Family Division. [379] I would dismiss Ms. Armoyan’s appeal from the judge’s evidential ruling of August 22, 2012, on the basis of mootness and unavailability of the document in the appeal record, without ruling on the merits of the judge’s ruling, and without costs. [380] The parties should have an opportunity to further address the quantum of the costs awards on both the Adjournment Appeal and Forum Non Conveniens Appeal. I would reserve ruling on the quantum of the above costs awards until after receiving written submissions, and any sworn supporting material, respecting the parties’ positions on costs (1) for the proceeding in the Family Division related to forum non conveniens and (2) for both appeals in this Court. Ms. Armoyan should file her sworn material and submissions by September 30, 2013. Mr. Armoyan should file his sworn material and submissions by October 15, 2013. Ms. Armoyan may file a rebuttal submission by October 22, 2013. [381] The costs awards, once quantified, should be payable forthwith. [382] Any amount posted as security for costs by Ms. Armoyan should be repaid forthwith. [383] Fichaud, J.A. Concurred: MacDonald, C.J.N.S. Bryson, J.A.