Can a husband recover property that had been transferred to his wife for the purpose of evading execution?
Alberta, Canada
The following excerpt is from Phillips v. Phillips, 1993 CanLII 7060 (AB QB):
A leading decision concerning this principle is Scheuerman v. Scheuerman (1915), 1916 CanLII 42 (SCC), 28 D.L.R. 223 (S.C.C.), where it was held that a husband could not recover property that had been transferred to his wife for the purpose of evading execution. This decision appears to say that intent to commit illegality or fraud is sufficient to prevent such evidence from being used to rebut the presumption of advancement in favour of a wife. A wife is in the same position as a child with respect to the presumption of advancement. Idington J., however, did say in his reasons for the decision that if there is evidence to rebut that is not tainted by illegality then it may be used for the purpose of rebuttal.
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