Common Law Spousal Property Entitlements Prior to Death

September 1, 2011 Hull & Hull LLP Estate & Trust Tags: , 0 Comments

The recent Supreme Court of Canada case of Kerr v. Baranow  recognized common law relationships and gave guidance on the appropriate approach to address property and compensation claims in such relationships.

Unlike married spouses, there is no legislative scheme for common law couples to determine property division upon the breakdown of a relationship. 

Following a relationship breakdown, one common law partner may claim that the other would be "unjustly enriched" if permitted to retain certain property without some kind of monetary compensation or without some sort of ownership interest in the land or investment. Typically, the aggrieved partner advances a “resulting trust” claim.

The Supreme Court decided that, to establish an unjust enrichment claim, the claimant must show: (i) that there was a joint family venture and (ii) that there is a link between his or her contributions and the accumulation of wealth. Whether there is a “joint family venture” depends on such factors as:

  • mutual effort (i.e. whether the parties worked collaboratively towards common goals);
  • economic integration (i.e. joint bank account/ sharing of expenses or common savings);
  • actual intent express or inferred; and
  • priority of the family (i.e. detrimental reliance on the relationship, by one or both parties, for the sake of the family). 

David M. Smith – Click here for more information on David M. Smith

 

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