Common-Law Separation

Legislation in Ontario regarding division of property under Part I of Ontario’s Family Law Act applies only to married couples. As such, when common law spouses separate, they often only divide property that is jointly owned. However, Court have recognized that in some cases this would produce an unjust result. To that end, common law spouses must resort to equitable claims, as they do not have access to the property-sharing regime designated for married spouses.

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Courts have affirmed the principle referred to as a “constructive trust” where the following elements are present:

one party received a benefit;
the other party received a corresponding deprivation; and
there is no juristic reason for the benefit/deprivation.

Further to the above, in a well-known case, Kerr v. Baranow, the Court held:

“When the parties have been engaged in a joint family venture, and the claimant’s contributions to it are linked to the generation of wealth, a monetary award for unjust enrichment should be calculated according to the share of the accumulated wealth proportionate to the claimant’s contributions. “

A Court will consider the following factors when determining whether or not there is a “joint family venture”: (i) mutual effort; (ii) economic integration; (iii) actual intent; and (iv) priority of the family. Further to the above, where a Court finds that there is a “joint family venture” a party may be entitled to a payment of monies so as to allow the deprived party to a share of the accumulated wealth.