When you rack up debt after separation, don’t anticipate your former partner to pay for it

Sharing the belongings and liabilities a pair acquired throughout a wedding is a typical a part of any separation. However in some jurisdictions in Canada, adjustments to some’s belongings and liabilities that happen after they cut up could be dragged into the calculation as effectively.

That’s what occurred within the case of a pair in Alberta, who, over the course of their marriage, had achieved enviable monetary success, accumulating vital wealth and, fairly remarkably, no debt. Sadly, their success didn’t lengthen to their marriage and, after 26 years, the couple ended their relationship. Following their separation, the couple’s companies met the identical destiny; they have been ultimately liquidated and the struggle over learn how to divide the proceeds ensued.

The events weren’t in a rush to resolve the monetary points arising from their separation. Six years glided by with no decision. Throughout that point, the couple’s monetary lives remained interconnected. Put up-separation, the husband amassed over $115,000 in bank card and line of credit score debt, whereas the spouse amassed solely $1,489 in bank card debt. The husband took the place that the spouse should be chargeable for one-half of his debt. This problem, and some others, made consensual decision between the events not possible.

The husband commenced court docket proceedings whereby he sought a division of matrimonial property premised upon the spouse sharing the debt the husband amassed after separation. In Might 2018, a trial lastly proceeded earlier than lately appointed Justice M.E. Burns of the Courtroom of Queen’s Bench of Alberta.

The trial choose accurately identified that, beneath Alberta’s Matrimonial Property Act, the events’ belongings and liabilities are divided between the events as of the date of trial. That’s distinct from different jurisdictions in Canada, lots of which divide property based mostly on the worth of belongings as of the date of separation. The husband relied on Alberta’s legal guidelines in assist of his place that the spouse must be chargeable for one-half of the debt he amassed after separation.

At trial, Justice Burns agreed with the husband. The spouse was ordered to pay the husband $421,013.50, an quantity which included the spouse paying the husband one-half of the debt the husband amassed after separation.

Understandably, the spouse appealed. The Alberta Courtroom of Attraction opened its choice by stating “this enchantment demonstrates the difficulties that may come up when dividing matrimonial property after a prolonged interval of separation throughout which the events stay financially interconnected.”

On enchantment, the spouse argued that, as a result of the husband didn’t “present any cause for the buildup of his post-separation debt, and since he ought to have been in a position to simply meet his every day wants based mostly on his revenue and interim distributions of property, he must be solely chargeable for the debt.” The appellate court docket agreed.

In reaching its choice that the spouse shouldn’t be chargeable for one-half of the husband’s debt, the Courtroom of Attraction famous that “the onus is on the celebration incurring debt after separation to exhibit that the debt was used for the good thing about the household unit and never solely for the debtor’s personal functions. If that can not be established, (the Matrimonial Property Act) permits unequal distribution of the debt, together with sole accountability for the debt falling to the celebration that incurred it.”

Persevering with on, the Courtroom of Attraction acknowledged that, on this case, “there’s a full absence of proof as to why these money owed have been incurred. The trial choose misapprehended (the husband’s) onus, as an alternative justifying an equal division of his debt due to an absence of proof. This was an error.” Within the outcome, the Courtroom of Attraction discovered the husband to be solely chargeable for the debt he incurred post-separation.

This case serves as a reminder to separated events that the passage of serious time, and an ongoing monetary nexus, will make the decision of monetary points arising from separation advanced, time consuming and costly. This is applicable to all Canadian jurisdictions, not simply to people who, like Alberta, divide belongings and liabilities as of the date of trial. Courts throughout the nation are routinely requested to find out learn how to account for post-separation transactions.

Given the unlikelihood of a right away decision, separated spouses could be sensible to maintain observe of all post-separation monetary transactions. Explicit regard must be needed to the aim of every transaction and who loved the good thing about the transactions. By way of this consideration to element, the prices of a trial and, as on this case, the prices of an enchantment, could also be averted.

Adam N. Black is a associate within the household regulation group at Torkin Manes LLP in Toronto.
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