Author: Lailna Dhaliwal LLP |

The courts permitted spouses to argue constructive and resulting trust principles, namely, that there had been an unjust enrichment on the facts in favour of the owning spouse that ought to be shared through a declaration that the property was equitably owned equally by both spouses.

In Kerr v. Baranow, the Supreme Court of Canada introduced the concept of “joint family venture” as a way of proving unjust enrichment.

The test for unjust enrichment has not changed (it still requires proof of enrichment or benefit to the defendant, a corresponding deprivation suffered by the plaintiff, and the absence of juristic reason for the enrichment), but the court set out factors to consider in assessing evidence of a joint family venture and the key elements to consider when addressing a remedy in unjust enrichment cases.

A joint family venture arises where contributions of both parties have resulted in an accumulation of wealth.

To determine whether the parties have been engaged in a joint family venture, the particular circumstances of each relationship must be taken into account, including mutual effort, degree of economic integration, actual intent, and priority of the family during the relationship.