📜 Introduction: The Challenge of Common Law Property Division in Ontario
When a common law relationship ends in Ontario, the division of property is governed by one fundamental principle: property belongs to the person whose name is on the title.
This is the central challenge facing thousands of separating, unmarried couples every year. Unlike legally married spouses who are entitled to an equalization of net family property under the Family Law Act (FLA), common law partners in Ontario have no automatic right to share in the wealth accumulated during the relationship.
If you made significant, uncompensated contributions to an asset—especially the common law home—that is registered solely in your former partner’s name, your primary legal recourse is often a claim for Unjust Enrichment, with a proprietary remedy known as a Constructive Trust.
This in-depth guide explains the rigorous legal test you must satisfy to successfully claim a Constructive Trust and secure your rightful share of property.
Part 1: The Foundational Claim – Unjust Enrichment
A Constructive Trust is not a right; it is a remedy granted by a court to rectify a finding of unjust enrichment. Therefore, your first, and most critical, hurdle is to prove the three-part test for unjust enrichment, as established by the Supreme Court of Canada in the landmark cases of Pettkus v. Becker and Kerr v. Baranow.
The Three Essential Elements of Unjust Enrichment
To prove that your former partner was unjustly enriched at your expense, you must establish the following:
- Enrichment of the Defendant
The owner-partner (the defendant) must have received a tangible benefit or enrichment. This is typically the easiest element to prove. Examples include:
- Acquiring the family home (or common law home) or other real estate.
- Increasing the value of an asset (e.g., through renovations).
- Accumulating savings, investments, or business value.
- Corresponding Deprivation of the Claimant
The non-owner partner (the claimant) must have suffered a corresponding deprivation or loss. This loss must be directly linked to the enrichment of the defendant. Deprivation can take many forms:
- Direct Financial Deprivation: Using your income or savings to pay for the mortgage, property taxes, utilities, or capital repairs on the partner’s property.
- Labour Deprivation (Sweat Equity): Personally, performing or managing substantial home improvements or renovations (e.g., framing a basement, installing a new roof) without being paid.
- Non-Financial/Domestic Deprivation: Sacrificing your own career or educational opportunities to take on a disproportionate share of domestic labour, childcare, or home maintenance, which frees the other partner to build their career and acquire wealth.
- Absence of a Juristic Reason for the Enrichment
There must be no juristic reason (no legal or equitable explanation) for the enrichment to be retained by the defendant. This is where the court asks: Why should the enriched person be allowed to keep the benefit?
The enrichment is justified if the claimant’s contribution was:
- A gift (i.e., you intended to give the money or labour with no expectation of compensation).
- The subject of a contract (e.g., a formal Cohabitation Agreement in Ontario that governs property division).
- A result of a legal obligation (e.g., sharing the basic cost of living).
If you can prove that your contributions were made with the reasonable expectation of receiving a beneficial interest in the property, and this expectation was known or ought to have been known by the defendant, the court is likely to find an absence of a juristic reason.
Part 2: Moving from Compensation to Ownership – The Constructive Trust Test
Once unjust enrichment is proven, the court must determine the remedy. The court’s primary goal is to reverse the unjust enrichment to the extent possible.
The Two Possible Remedies
- Monetary Award (The Default): This is a simple financial payment. It is the preferred remedy in most cases and is often calculated by one of two methods:
- Value of Services (Fee-for-service): Valuing the actual services or contributions you provided (e.g., cost of a housekeeper or contractor for the labour you performed).
- Value of Property (Joint Family Venture): This involves awarding a proportionate share of the couple’s total wealth accumulation, especially if the relationship was a “Joint Family Venture.”
- Constructive Trust (The Proprietary Remedy): This is a more powerful remedy that is only awarded when a monetary award would be inadequate or insufficient. A successful Constructive Trust imposes an equitable beneficial ownership interest on the asset itself, meaning you become a part-owner of the property.
The Two Conditions for a Constructive Trust
To secure a Constructive Trust, you must prove two additional conditions:
- Causal Connection (The Nexus Requirement)
You must demonstrate a direct causal connection (a legal link, or “nexus”) between your specific contributions and the acquisition, preservation, maintenance, or improvement of the disputed asset—such as the common law home.
- Strong Link: Providing $50,000 for a down payment or spending 100 hours of skilled labour installing a new roof.
- Weak Link (Monetary Award Only): Contributions to general living expenses that allowed the partner to save for the property’s deposit, but with no direct link to the property itself.
- Insufficiency of a Monetary Award
You must prove that a financial payment alone cannot fairly compensate you for your loss. This condition is most often met in one of two scenarios:
- Unique Property: The property is the family home where you and your children reside, and denying ownership would disrupt your life unfairly (though this is more common in custody/access disputes).
- Post-Separation Value Growth: The property has significantly increased in value after the date of separation (Rawluk v. Rawluk principles often apply here). Since a monetary award is often calculated as the value of the enrichment at the time of the deprivation, only a Constructive Trust allows you to share in the property’s current, enhanced market value. This is a critical point for real estate claims in the GTA or other highly appreciated markets.
Part 3: The Role of the “Joint Family Venture”
While not a formal test element, the Supreme Court of Canada recognized the concept of a Joint Family Venture in Kerr v. Baranow. Proving that your common law relationship was a de facto partnership is the strongest way to secure a share of accumulated family wealth, often leading to a calculation based on the Value of Property approach.
A Joint Family Venture is assessed by considering four factors:
| Factor | Description | Example of Evidence |
| Mutual Effort | Did the couple work together towards common goals, even if contributions were different (one earning, one domestic)? | Evidence of both partners supporting the other’s career or education. |
| Economic Integration | Did the couple pool their finances, have joint bank accounts, or treat their incomes as family money? | Shared accounts, one person’s income pays the mortgage while the other’s pays all utilities. |
| Actual Intent | Did the parties intend to operate as an economic unit? Did they have discussions about “their” assets and “their” future? | Text messages, emails, or testimony where the owner partner referred to the property as “ours.” |
| Priority of the Family | Did one partner subordinate their financial self-interest to the family unit’s well-being (e.g., staying home for childcare)? | Tax records showing reduced income or detailed testimony on sacrifices made. |
The longer the common law cohabitation, and the more integrated the finances, the stronger the argument for a Joint Family Venture, which dramatically improves the prospects of a successful Constructive Trust claim.
📝 Essential Steps for Protecting Your Claim
For any common law partner seeking an interest in a property not titled in their name, preparation is paramount. The court’s decision is always highly fact-specific.
Crucial Documentation You Must Gather:
- Financial Records: Bank statements, cancelled cheques, and money transfer records proving you paid for the mortgage, property taxes, or capital improvements.
- Receipts and Invoices: Documentation for all materials purchased and professional services hired for renovations or maintenance.
- Photographic Evidence: “Before and after” photos of renovations or construction you personally performed (sweat equity).
- Communication Records: Emails, texts, or journal entries where you and your partner discussed the property as a “shared” asset or where they acknowledged your financial or labour contributions.
- Witness Testimony: Statements from friends, family, or contractors who can verify the extent of your labour or financial contributions to the home.
Note: The limitation period for bringing an Unjust Enrichment claim after common law separation can be complex, often running from the date the injury (the deprivation) was discovered, typically the date of separation, though the facts of the separation date itself are also critical. Do not delay seeking legal counsel.
Disclaimer: This blog post provides general information on Ontario common law property claims and does not constitute legal advice. The legal landscape regarding Constructive Trust is highly complex and constantly evolving. If you are separating from a common-law partner, you must consult with an experienced Ontario family law lawyer to discuss the specifics of your situation and protect your rights.