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In Ontario, unmarried couples do not have access to the Family Law Act, the statute that allows for an equalization of net family property upon the breakdown of a marriage. Instead, if a person leaving a common law relationship wishes to make a claim against her former partner’s property, she must do so in equity, either by way of resulting trust or in a claim for unjust enrichment.

Resulting trust claims in Canada generally arise where a piece of property was purchased in the name of one person but paid for by another or, placed in the name of one person but contributed to by both. The person who holds legal title to that property is said to hold a portion of it in trust for the other, paying party. So if a couple purchases a home together, but for whatever reason, place it only in the name of one party, the party who does not hold legal title to the home can bring a claim of resulting trust against the other party concerning her interest in the home.

Claims in unjust enrichment are often brought in scenarios where a party has bestowed money or money’s worth on the other party and has received nothing in return for his or her efforts. Common examples include child rearing, housekeeping, contributions to the mortgage of a house in the other partner’s name, or maintenance work on the home itself. The party bringing the claim must establish the following: 1) that a benefit has been conferred; 2) that a corresponding detriment has occurred and 3) that there is no juristic reason that the person who received the benefit should keep it.

Remedies to a successful claim in unjust enrichment include a constructive trust over of a portion of the disputed property; quantum meruit (money equivalent to what a person doing the work for pay would have received such as a nanny or a house cleaner) or, as of 2011, a joint family venture remedy that provides for the monetary award of a certain percentage of the value of all assets accumulated during the relationship by the parties. Each of these remedies has a particular set of facts that must be present before a court can award them.

In January 2014 the Ontario Court of Appeal ruled in McConnell v. Huxtable, 2014 ONCA 86 that unjust enrichment claims brought by former common law partners are subject to the same limitation periods as ordinary civil claims. That is, two years from the date of discovery except for claims made against real property (land, houses etc.) where the limitation period is 10 years. This case is currently under appeal to the Supreme Court of Canada, however if you are leaving a common law relationship and believe you are entitled to a claim in equity against your former partner, it is best that you consult a lawyer in a timely manner so as to avoid missing a limitation period.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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