Unwin v Unwin

• Jurisdiction: Trinidad & Tobago
• Judge: Rees, J.
• Judgment Date: 26 September 1966
• Neutral Citation: TT 1966 HC 13
• Docket Number: No. 64 of 1964
• Court: High Court (Trinidad and Tobago)
• Date: 26 September 1966

High Court of Justice

Rees, J.

No. 64 of 1964

Unwin

and

Unwin

Appearances:

Procope, Q.C. and Bertie for petitioner

Rienzi for respondent

Family Law - Husband and wife — Divorce — Whether husband's Canadian domicil of origin abandoned. — Petition by the respondent's wife for divorce on the ground of the respondent's adultery. Respondent argued that he had not abandoned his Canadian domicil of origin. Court therefore not competent to entertain the wife's petition. — In Trinidad a wife takes her domicil from her husband. Little doubt that the husband's domicil of origin was Canada. For it to be changed there should be the actual fact of residence in a new country and the intention to remain permanently in that new country. Here evidence inadequate for Court to conclude that the husband formed a definite intention to choose Trinidad as his permanent home in preference to Canada. Court therefore unable to entertain these proceedings. Petition and cross-petition dismissed.

Rees, J.

1 This is a petition by the wife for divorce on the ground of her husband's adultery. In his answer the husband admits committing adultery with Lucille Breaus as alleged in the petition, but is asking the Court to exercise its discretion in his favour by not granting the relief sough and dismissing the petition, as on several occasions between November 1961, and January 1962, the wife committed adultery with Peter Schmidt at Rural Route, No. 3 Brampton, Ontario, Canada, a matter she has failed frankly to disclose.

2 The wife alleges in her petition that she and her husband who are native Canadians, are domiciled in Trinidad, but Counsel for the husband contends that there is no sufficient evidence adduced for the Court to find that the husband has abandoned his Canadian domicil of origin and acquired a domicil of choice in Trinidad. If there is substance in his contention, then the wife who takes her domicil from her husband is not domiciled in Trinidad, in which case it would not be competent for me to entertain her petition for divorce. The first question, therefore, is that of domicil.

3 The parties were married in the province of Ontario on March 13, 1943, and there are four children of the marriage namely, Vivian, born February 17, 1944; Janet Lynn, born May 5, 1945; Wendy Lucia, born June 14, 1948, and Peter Stewart, born May 29, 1953. Although the husband's primary occupation was that of a General Insurance Agent representing several Insurance Companies in Canada, the parties at a very early stage in their married life became active in buying and selling property as a secondary form of business for the purpose of augmenting their income. It appears that they followed a fixed pattern, which was to purchase in their joint names a parcel of Land, erect a house thereon with borrowed cash, use the whole or part of the house as the matrimonial home, let the remaining part to tenants and thereby obtain some income from the property which was ultimately sold at a profit. This went on until 1961 when the husband signified his intention of coming to Trinidad with the two-fold purpose of having a six month vacation and exploring the business prospects of nearby Venezuela. As he has always taken the view that if there was an opportunity to make some money while on vacation he would do so, before leaving Canada, he secured an agent's contract with Crown Life Insurance Company Ltd. to sell life insurance policies in Trinidad and Venezuela.

4 In April 1951, he brought his wife and children to Trinidad, leaving “Clover Leaf”, the matrimonial home in Canada, occupied by tenants and under the supervision of a real estate agent. He carried on in Trinidad as an Insurance Agent until 1953 when he established himself as a Commercial Representative under the business name of Bert S. Urwin Company. In 1954, as a result of a transaction concerning the sale of a boat, he earned a commission which was paid to him in the form of three parcels of land at Ascot Road, Goodwood Park, Trinidad, a well considered residential area. Shortly after the acquisition of this property which was registered in the joint names of the parties, they set in motion the system which they had operated to some advantage in Canada. They borrowed money in their joint names, erected six self-contained luxury apartments and rented them out to tourists when they could get them and to locals when the former were not available. As they found it more economical, the parties continued to live in a rented house at Glencoe, Trinidad, residential area, not as well considered as Goodwood Park. After renting out all the apartments for two years they moved into one and continued to rent the other five. Sometime before 1959 the parties had placed two of the children at school in Canada and in 1960 the wife followed with the remaining two.

5 I am satisfied that even before she left this country the parties had agreed to dispose of “Clover Leaf” and acquire in its place a property which would serve the double purpose of (1) having in its location a position within easy reach of the children's school and (11) providing some form of added income by having apartments suitable for letting. Within a short time of her arrival in Canada the wife, according to plan, sold the “Clover Leaf” property to the Canadian Government for $14,491.76 (Canadian), paid off the outstanding balance of a mortgage that was then subsisting and deposited the balance to their joint account. Later she withdrew about $9,000 from the bank, applied it towards the purchase price of a new property, and by July 21, 1960, was writing to her husband to inform him that she had acquired a property at Streetsville, Canada which fitted in with their requirements. The house contained three rentable units and an apartment which the wife and children could occupy. The situation of the house, which was 10 minutes from Brampton and five minutes from Streetsville, was convenient for the children's schooling. Toronto was only an hour's run from the house. In her letter of July 21, which was written in an...