Wife Tries To Access Funds Held By Husband After Separating Abroad feature image

Wife Tries To Access Funds Held By Husband After Separating Abroad

It’s a common goal for married couples to want to travel the world upon their retirement. But what happens when a marriage breaks down while a couple are on an extended trip? A recent decision from the Court of Queen’s Bench of Alberta highlights some of the challenges associated with separated or divorced parties traveling aboard.

Separation occurs during world travels

The couple, though never married, was involved in a common-law relationship from August 1997 to May 2019. They lived together, without children, in Alberta until the fall of 2017. They left Alberta that year to travel following the husband’s retirement.

During their relationship, the husband was the main income earner, though the wife did contribute financially, and each contributed to the expenses of their home. During a time when the husband was on disability leave from his work, the wife was able to make enough to support them. The wife also came up with $40,000 which was used by the parties to buy an acreage of land in 2001.

The parties did not have children together, but the wife still managed most of the “domestic” duties associated with their day-to-day lives, including scheduling hair appointments, bank appointments, and caring for their animals on the acreage.

Prior to their departure for world travels the parties’ main sources of income were the husband’s pension as well as the proceeds from the sale of the acreage, which netted them over $200,000 in profit. The money from the sale was deposited into the husband’s bank account.

Unfortunately, the parties separated sometime around May 2019 while traveling in Thailand, where they are both still living. The wife was concerned that she would have no access to the income from the sale of their acreage or the husband’s pension funds now that she was no longer in communication with the husband.

Can an Alberta court establish jurisdiction?

The wife had asked the court to confirm its jurisdiction. In order to do that, the court has to establish that there is a real and substantial connection between Alberta and the issues before the court. This test was established in a 2012 Supreme Court of Canada decision. It did not take long for the court to determine there is a real and substantial connection, since all of the circumstances giving rise to the wife’s claims were based in Alberta.

Addressing the claims for pension funds and unjust enrichment

In looking at how the parties structured their financial affairs, the court determined that the husband had been unjustly enriched, particularly by the wife’s contribution of the entire down payment for their acreage, which was sold with the profits being held by the husband. The wife was also found to have enriched the husband’s life by her role in managing their home while living in Alberta.

When addressing how the wife should be paid for the profit they made of the sale of the acreage, the court determined that there was little it could do, since it was sold and the money was distributed before they separated. As a result, the only asset held by the parties at the end of the relationship was the husband’s pension. The court ordered that the wife be transferred 33.5% of the husband’s pension on a monthly basis after calculating how long she was with him and what percentage she was entitled to. The court determined this would also be the most appropriate way to address spousal support.

HMC Lawyers are committed to protecting your rights. If you have recently separated from your spouse, or are going through the process of a divorce, speak to one of our family lawyers about division of property issues to ensure that you are properly protected. Call 1-800-480-3534 or contact us online to make an appointment. We represent clients primarily in Calgary and surrounding areas.

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