Journal Article

A Roadmap for Unjust Enrichment and Resulting Trust Claims (Yes, they are different)

Warren, Kristy, Tsao, Roslyn M

2024

Overview

C.A.), the Ontario Court of Appeal held that the court is to resolve questions of ownership - including beneficial ownership - before it determines each party's net family property and calculates the equalization payment.3 This would suggest that, where a party is claiming a remedial constructive trust, the court is to determine the claim for unjust enrichment (and the appropriate remedy, if any) before determining the claim for equalization. (b) However, the Court of Appeal has also stressed that, in the vast majority of cases, any unjust enrichment that arises as a result of a marriage will be fully addressed through the operation of the equalization provisions under the Family Law Act, including under s. 5(6) of the Act, which allows the court to award a party an amount that is more or less than half the difference between the net family properties.4 (c) We suggest that the court cannot consider claims for unjust enrichment and equalization in separate silos, and must consider the interplay between the two claims, including whether the equalization payment obviates the need for the court to make an additional monetary or proprietary award to address the unjust enrichment. Given the Court of Appeal's decisions in McNamee, Martin and Li, referred to above, cases where the court finds the need to make a monetary or proprietary award to address unjust enrichment arising from the marriage should be the exception, rather than the rule. 2. What Limitation Period Applies to the Claim for Unjust Enrichment? (a) A claim for unjust enrichment in which the claimant is seeking a remedial constructive trust in a real property is subject to the ten-year limitation period under s. 4 of the Real Property Limitations Act, R.S.O. 1990, c. F.15.5 Where the claimant is seeking a monetary award in the alternative to a remedial constructive trust in real property, the same ten-year limitation period applies.6 (i) Note that, if the claimant has been/is in possession of the real property, s. 5(1) of the Real Property Limitations Act postpones the commencement of the limitation period to the time of dispossession or discontinuance.7 (b) A claim for unjust enrichment in which the claimant is only seeking a monetary award or an interest in something other than a real property is subject to the two-year limitation period under s. 4 of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. В. If \"NO\", unjust enrichment has been established, proceed to Question 2 below. (i) The court may take into account the reasonable expectations of the parties and moral and public policy considerations about whether particular enrichments are unjust, notably in a domestic family law situation.18 (ii) The provision of domestic services can support a claim for unjust enrichment.19 A spouse or domestic partner generally has no duty, at common law, equity, or by statute, to perform work or services for the other.

• Publisher: HAB Press Limited
• Subject: Family law / Marriage / Proprietary