When it comes to property division, common law couples do not have the same rights as married couples. At the end of a common law relationship, one party often holds more property than the other. In appropriate circumstances, the courts will order that the economic consequences of relationship breakdown be shared fairly between the parties. This issue was determined by the Supreme Court of Canada in the 2011 decision Kerr v. Baranow. In the event that a claimant can demonstrate unjust enrichment, he or she may be entitled to a monetary or proprietary award.

To address this issue, the court will look to whether one of the parties was unjustly enriched by the contribution of the other. To show unjust enrichment, the following must be demonstrated:

  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 juristic reason – no reason in law for the enriched party’s retention of the benefit provided by the other party.

Many factors can affect the outcome of this analysis. The courts have made clear that the contribution of domestic services constitutes an enrichment because they are of great value to the family and to the other partner. Financial contributions of the parties will be considered, irrespective of who is the legal owner of the property in dispute.

In many cases, the unjust enrichment is best characterized as the accumulation of property one party over the course of a joint family venture to which both partners have contributed. A claimant may succeed in recovering money by showing evidence of a joint family venture and a link between his or her contributions and the accumulation of wealth. The following factors are important to this analysis:

  • 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 is not closed, and a global analysis of the facts of each situation will determine whether or not a joint family venture exists. Contact us if you require more information about common law property division.