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Family Law Unjust Enrichment Joint Venture Property Rights for Common Law vs Married Spouses

Date: 06 Mar, 2014

Elsewhere I have discussed the different property rights that exist between common-law and formally married spouses. They are not the same and continue to remain very different.Married parties are subject to the property scheme imposed by the Family Law Act. Grossly simplified, each of the spouses walk away from the marriage with an equal net worth.[1]

Common-law parties are limited to common-law rights also known as judge made law. These can arise from the way that title is held. An example are houses registered in both names and as such belong to both parties. Or alternatively, the application of judge made equitable rules which one can paraphrase as being fairness rulesĀ. One of those rules is unjust enrichment. Unjust enrichment and its close cousin, joint venture, were explored and expanded upon by the Supreme Court of Canada in its 2011 decision in Kerr v. Baranow.

For married couples, the property regime under the Family Law Act does not entirely exclude the application of the fairness rules or unjust enrichment. However, the Ontario Court of Appeal [2] has held that although the law is clear that equitable principles such as unjust enrichment have not been supplanted by the enactment of the Family Law Act in the vast majority of cases an unjust enrichment that arises as a result of the marriage would be fully addressed through the operation of the equalization provisions.

In other words, the court will rarely use these extra ordinary powers.

The holding onto these extraordinary judge made remedies is an ongoing source of aggravation for the people who carefully crafted the Family Law Act, hoping that it would bring certainty rather than fuel for property division litigation.Simply put, there are many competing factors when spouses separate, whether married or not and only a thorough review of all of those factors by a qualified family law lawyer can produce advice worth listening to.

[1] The Formula is far more complicated than this and requires an in-depth review with a qualified family law lawyer, such as those as Dale Streiman Law L.L.P.

[2] McNamee v. McNamee in 2011.

By: Fred Streiman
Fred-Streiman