Kerr v. Baranow, 2011 SCC 10,
outlines the Supreme Court of Canada's approach to property
division for common law spouses. In contrast to married couples,
there is no legislation to assist common law couples with
distribution of property at the time of breakdown of the
relationship. Furthermore, in the case of common law couples, there
is no presumption that assets will be divided equally at the time
K and B separated after a common law relationship of 25 years. K
claimed for property in B's name pursuant to the law of
resulting trust and unjust enrichment. B counterclaimed for
compensation for assistance he provided to K after she
suffered a debilitating stroke, pursuant to unjust enrichment.
The Vanasse v. Seguin appeal involved common law
spouses who separated after a 12 year relationship. Initially,
the parties pursued their respective careers. Subsequently, V
sacrificed her employment in order to relocate for the purpose of
S's expanding business and to raise two children and look
after the household. Eventually, when S sold the business, he
assisted with the domestic duties.
Traditionally, the principles of resulting trust and unjust
enrichment have been applied to common law property distribution
claims. In Kerr v. Baranow, the SCC affirmed that in most
cases, the law of resulting trust has no further application to
common law property distribution claims. Usually, the finding of a
"common intention" between common law spouses regarding
property ownership is an artificial construction.
Alternatively, unjust enrichment and the remedial
constructive trust as applied in Pettkus v.
Becker,  2 SCR 834, are the correct principles to
apply to these cases. The three elements of unjust enrichment
an enrichment of the Defendant by the Plaintiff;
a corresponding deprivation of the Plaintiff; and
the absence of juristic reason for the enrichment (juristic
reasons: donative intent, contract between the parties or
disposition of law - and the categories of reasons are not
A monetary award is usually sufficient in a case of unjust
enrichment. However, in the example of domestic services provided
by a common law spouse, it is not appropriate to calculate the
monetary award based on a quantum meruit or
fee-for-service basis. Often, the unjust enrichment occurs
when the spouses contibute to a "joint family
venture". In order to determine if a joint
family venture exists, a Court must examine whether there has
been mutual effort towards common goals, economic integration of
the couple's finances, actual intent to share in the wealth
created and prioritization of the family. Each spouse's
contributions cannot be determined by a set-off of quantum
Finally, the SCC affirmed that a Defendant's Counterclaim
should be assessed at the defence or remedy stage rather than at
the juristic reason stage of the unjust enrichment analysis.
Usually, the Defendant's Counterclaim will not suffice to
provide a juristic reason for the Defendant's enrichment.
In Kerr, the SCC found that the British Columbia Court
of Appeal erred in dismissing K's claim for unjust enrichment
and ordered a new Trial on that issue. K's appeal from the
dismissal of her resulting trust claim was dismissed. The SCC
affirmed the Order for a hearing of B's Counterclaim.
In Vanasse, the SCC allowed the appeal and restored the
Order of the Trial Judge who had correctly determined that there
was a joint family venture (without using this term) and tied
V's contibution globally to the growth of the family
This decision from the SCC regarding distribution of
property on the breakdown of common law relationships,
provides important direction for family law lawyers and their
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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It is not uncommon for parents to provide monetary gifts to their adult children. Parents may wish to help their child with a down payment on a property, or help pay out their child's existing mortgage.
On March 31, 2014, BC's new Wills, Estates and Succession Act1 ("WESA") will come into force. WESA introduces new protections for beneficiaries of estates that are in danger of being disputed or deemed ineffective by a court.
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