Joint Family Ventures

January 18, 2013 Hull & Hull LLP Common Law Spouses Tags:

At a seminar sponsored by Hull & Hull LLP, the “Breakfast Series”, Ian Hull discussed the impact of Kerr v. Baranow in Estates law. The Supreme Court’s decision establishes the framework for how the courts apply the principles of equity to property claims by unmarried spouses. Unmarried spouses can turn to Joint Family Ventures (“JFV”) as a remedy to argue that they are entitled to specific property.

The decision was applied in Hillier Estate v. McLean. In this case, the deceased’s daughter brought an action to have the deceased’s former common law wife, Ms. McLean, removed from the house owned by the deceased. The deceased and Ms. McLean separated several times during their relationship. At the time of the deceased’s death, they were separated and had entered into a Separation Agreement.

The court found the existence of a JVF based on the following facts:

1. The deceased and Ms. McLean had only one bank account and it was in the deceased’s name.

2. Ms. McLean had been on social assistance in the early stages of the relationship.

3. Living with the deceased had allowed Ms. McLean to maintain her desired lifestyle in her desired community without the need for social assistance.

4. Ms. McLean’s limited contributions to the house represented some benefit to the deceased and a corresponding deprivation to her.

5. Ms. McLean and the deceased had planned to build the house together with the intention that they would live in it as a family.

Upon finding that a JFV existed, the Court found that Ms. McLean was entitled to a greater portion of the deceased’s property than the Separation Agreement allowed. However, as she had not worked to contribute to the family and as she had not contributed equally to the acquisition of the house, the Court found that Ms. McLean was only entitled to 10% of its equity.

Holly LeValliant

 

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