Common Law Property

Common Law Property Rights

When it comes to property division, common law couples do not have the same rights as married couples.

This means that at the end of a common law relationship, one party often unfairly holds more property than the other. To resolve this, the courts can make orders so the parties equally share the economic consequences of relationship breakdown. This issue was determined by the Supreme Court of Canada in the 2011 decision Kerr v. Baranow.

Based on this decision, when a claimant can demonstrate unjust enrichment, he or she might get a monetary or property award.

Determining Unjust Enrichment

To address this issue, the court looks to the following:

1. An enrichment – something of value received and retained by the party with property
2. A corresponding deprivation – something that has been lost so as to enrich the other party
3. Absence of a legal reason – no reason for the enriched party to keep the benefit

Many factors can affect the outcome of this analysis. The courts have made clear that the contribution of domestic services constitutes an enrichment. Domestic services provide great value to the family including the other partner. In addition, financial contributions of the parties also warrant consideration, irrespective of who legally owns the property in dispute.

Establishing a Joint Family Venture

In many cases, the unjust enrichment results from the accumulation of property by one party over time. Often this takes place as part of a joint family venture to which both partners contribute. So to succeed in recovering money a claimant may show evidence of a joint family venture and a link between his/her contributions and the accumulation of wealth. As such, the court will look at the following factors:

• Mutual effort by the parties
• Economic integration of the parties
• Actual intent of the parties to share property
• Priority of the family by the parties

The list of relevant factors remains open to the addition others. A “global analysis” of the facts of each situation determines whether or not a joint family venture exists.

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