Note: Although the case discussed below involves a “common law” relationship, the terms “husband” and “wife” are used for ease of reading.
Most people dream of the day they can retire and spend their days living comfortably and travelling the world. For some lucky people, this will become their reality, but for others this could become their nightmare. This is especially true for couples approaching retirement, who, at this time in their lives are expecting to spend their retirement together. Unfortunately for some of these couples they are instead facing the previously unthinkable option of separation or divorce. This is what happened a recent case from the Alberta Court of Queen’s Bench, Postans v Davidson (2021 ABQB 30). This case had the additional task of determining the issue of what will happen if a couple decides to separation or divorce while they are on an extended trip?
In this recent decision, the couple involved were in a common law relationship for 22 years from August 1997 to May 2019. For the majority of their relationship, the couple lived together in Alberta. During the course of their relationship, the husband and wife were in a somewhat “traditional” marriage where the husband was the main breadwinner, although the wife did contribute to the household expenses, including making a $40,000.00 down payment on the parties’ acreage purchased in 2001. The parties had no children; however, the wife was responsible for majority of the household duties including scheduling appointments, caring for the parties’ animals, and caring for the parties’ acreage.
In 2017, upon the husband’s retirement, the couple planned to leave Alberta to enjoy their retirement travelling together. Prior to their departure, the parties sold their acreage for a profit of $200,000.00 which was deposited in the husband’s bank account. The parties’ relied on the husband’s pension and the proceeds from the sale of their acreage as their main source of income.
In 2019 while the parties were living in Thailand, they decided to separate. The wife was left without a source of income as the profit from the sale of the acreage remained in the husband’s bank account and the pension was being paid to the husband. The wife was concerned she would have no access to these funds as the parties were no longer communicating.
The wife brought an action in the Alberta Court of Queen’s Bench. Initially, the Court had to determine whether this was the appropriate court to have jurisdiction over the matter. To determine this issue, the Court had to determine whether there was a “real and substantial connection” between the jurisdiction (Alberta) and the issue before the Court. The requirement for a “real and substantial” connection was established by the Supreme Court of Canada in 2012. The Court determined that there was a real and substantial connection in this case, as all of the circumstances giving rise to the wife’s claim were based in Alberta; the test was met.
Given the parties’ financial situation at the time of their separation, the Court determined that the husband had been unjustly enriched by the wife’s financial and domestic contributions to the relationship. In particular, the Court pointed to the wife’s sole contribution to the down payment on the parties’ acreage and the fact that the husband retained the profits of the sale.
Unfortunately, because the acreage had already been sold and the profits were distributed to the parties before they separated, the Court determined there was little it could do to redistribute any of these profits to the wife. As a result, the Court held that the only asset that could be distributed between the parties was the husband’s pension. The Court ordered that the wife should receive 33.5% of the husband’s pension, paid on a monthly basis. The Court determined this was the appropriate division of the asset based on the length of the parties’ relationship contrasted with the timing of the husband’s accumulation of pension. The Court determined that this was also the most appropriate means of awarding the wife partner support.
The lawyers at Resolve Legal Group have extensive experience in division of family property and spousal/partner support and are committed to protecting your rights. If you have been recently separated from your spouse, or are going through the process of divorce and have concerns regarding property division and spousal/partner support, contact our office to speak to one of our family lawyers to ensure that you are properly protected.
Written by: Raj K. Sapal and Katie Ayer, Barristers & Solicitors at Resolve Legal Group
In 2017, upon the husband’s retirement, the couple planned to leave Alberta to enjoy their retirement travelling together.