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