ONTARIO SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-21-77
DATE: 2026/02/06
BETWEEN:
SHERRI LYNN ROMAIN Applicant – and – WALTER KENNEDY Respondent
Self-represented
K. Klein , for the Respondent
HEARD: July 29 and 30, 2025
REASONS FOR DECISION
Ellies J.
OVERVIEW
[ 1 ] Sherri Lynn Romain applies for support under the Family Law Act , R.S.O. 1990, c. F.3, and for exclusive possession of a home previously occupied by her and her former partner, Walter Kennedy. Mr. Kennedy resists Ms. Romain's request for support and seeks an order for partition and sale of the home or, in the alternative, applies for a declaration that Ms. Romain holds a portion of the equity in the home in trust for him as a result of his contributions to the construction of the home.
[ 2 ] These positions are not uncommon ones in family proceedings. However, the issues surrounding the home in this case are unique because the parties are not married, the home is on Nipissing First Nation (“NFN”) land, and Mr. Kennedy is not a member of the NFN band. His claim requires the court to consider for the first time the provisions of a law passed by the NFN, the Nipissing First Nation Matrimonial Real Property Law (the “MRPL”), under which Mr. Kennedy submits he is entitled to an order that he has an equitable interest in the home and that it should be sold so that he can realize that interest, regardless of his status.
[ 3 ] As I will explain in the reasons that follow, I disagree with Mr. Kennedy. Although I accept that Mr. Kennedy did not intend to make a gift of his contribution, because Mr. Kennedy knew at the time he contributed to the building of the home that he could not acquire an ownership interest in it as a non-band member, I find that he must have either intended to loan Ms. Romain the amount he contributed to the building of the home or intended that it should substitute for rent. As a result, a proprietary remedy by virtue of which Mr. Kennedy would receive a proportionate share of the value of the home would be inappropriate.
[ 4 ] In any event, as I will also explain, the MRPL does not permit the court to grant a non-band member an interest in a home on NFN land nor to order that a home owned by a band member be partitioned and sold to allow a non-band member to realize upon such an interest. Even if I am wrong in my view of the scope of the court's authority, I am not persuaded that a money award would be inappropriate.
[ 5 ] For these reasons, Mr. Kennedy is restricted to a monetary order, calculated not as a percentage of the present value of the home, but as a percentage of that portion of his contribution for which he has received nothing in return.
HISTORY OF THE PROCEEDINGS
[ 6 ] Ms. Romain commenced her application in May 2021. In September 2023, Mr. Kennedy brought a motion seeking an order for the sale of the home under the MRPL or, alternatively, the Partition Act . R.S.O. 1990, c. P.4. The hearing of the motion extended over four days in April 2024. Following the hearing, I reserved my decision. For reasons released on September 20, 2024, I held that Mr. Kennedy’s request for partition and sale was, in fact, a motion for partial summary judgment: Romain v. Kennedy , 2024 ONSC 5191 . I held that this was not a case in which it was appropriate to grant summary judgment, and the matter thus proceeded to trial on all of the issues.
[ 7 ] Prior to trial, it was agreed that the affidavits filed by the parties in the application would serve as their evidence-in-chief. At the outset of the trial, Ms. Romain sought to introduce a significant number of documents in support of her position that she had been abused by Mr. Kennedy during their relationship and that her health had suffered as a result. I refused to allow most of the documents into evidence. As I explained to Ms. Romain, many of the documents were not admissible because they were hearsay; no notice had been given under the Evidence Act , R.S.O. 1990, c. E.23, for some documents that might otherwise have been admissible; and still other documents required expert interpretation, regardless of their admissibility.
[ 8 ] Because Ms. Romain was self-represented and wanted to pursue her claim for support, I bifurcated the issues. The trial proceeded with respect to the issues surrounding the home and the trial relating to the issue of support was adjourned.
[ 9 ] These reasons relate only to the home. The support trial has not yet taken place.
BACKGROUND
[ 10 ] I will begin by setting out the less contentious facts as a backdrop to the conflicting evidence of the parties surrounding their relationship and the building of the home. I will deal with the more contentious facts later, in the analysis section of my reasons.
[ 11 ] Mr. Kennedy is 73 years old. He worked for CN Railroad until he retired in 1991, after suffering an injury.
[ 12 ] Ms. Romain is 56 years old. She has two adult children from two previous relationships. According to Ms. Romain, she and Mr. Kennedy met in 2008, had an affair, and then moved into an apartment together in the Sudbury area in September of that year, when she left her husband.
[ 13 ] Ms. Romain testified that she began spending time on NFN land with her mother and aunt in 1995. However, her Indigenous background was not recognized until 2012. The NFN gave Ms. Romain the land on which the home was built at 997 Yellek Trail in 2013.
[ 14 ] I will deal in detail with the building of the home on the land later in these reasons. For now, it is sufficient to note that the parties moved into the home in September 2015 and lived together there until May 2020. According to the affidavits filed by both parties, they lived separate and apart in the home beginning on February 25, 2020, and stayed that way until Mr. Kennedy moved out on May 5, 2020. Ms. Romain has remained in the home since then.
[ 15 ] In April 2022, the home was appraised at $240,000. No more recent appraisal was obtained by either party. Therefore, the trial proceeded on the assumption that this is the value of the home today.
ISSUES
[ 16 ] According to Mr. Kennedy, he made significant contributions of both labour and money to the building of the Yellek Trail home, beginning with clearing the lot and ending with the purchase of furniture. On his behalf, Ms. Klein submits that the overall costs of constructing the home were approximately $87,854. She submits that, of that sum, Mr. Kennedy paid 84 percent, or roughly $73,461.
[ 17 ] On behalf of Mr. Kennedy, Ms. Klein submits that there was a joint family venture here, by virtue of which Ms. Romain was unjustly enriched as the sole owner of the home. She submits that an order should be made that Ms. Romain holds an 84 percent equitable interest in the home in a remedial constructive trust for Mr. Kennedy. Alternatively, Ms. Klein submits that Mr. Kennedy's gratuitous contributions to the building of the home created a resulting trust in his favour, by virtue of which Ms. Romain holds Mr. Kennedy’s proportionate share of the home in trust for him. In either case, Ms. Klein submits that an order can and should be made under the MRPL that the home be sold, and Mr. Kennedy be paid his share of the net proceeds of sale.
[ 18 ] Ms. Klein makes two additional arguments. First, she argues that, in the event that the MRPL does not permit the court to order partition and sale, such an order can be made under the Partition Act . Second, she argues that, if neither law permits an order for partition and sale of Mr. Kennedy's interest in the home, Mr. Kennedy should obtain a monetary judgment to be registered against the home.
[ 19 ] Ms. Romain opposes all of Mr. Kennedy's claims. She submits that Mr. Kennedy's contribution to the building of the home can be calculated by deducting what Mr. Kennedy had in the bank at the end of the building process from what he had at the beginning. Using this methodology, Ms. Romain submits that Mr. Kennedy's contribution to the building of the home was roughly $23,742. However, she argues that this is less than the amount he would have had to pay for rent over the years during which he lived at the house and that he should, therefore, get nothing.
[ 20 ] In addition, Ms. Romain claims that Mr. Kennedy removed roughly $30,000 from a joint bank account, half of which was hers. Because such a claim, if proven, might result in a setoff as against any successful claim by Mr. Kennedy, I will not deal with it separately. Instead, I will deal with it in the context of my discussion about the other issues in this application.
[ 21 ] For reasons which I will explain, I believe the appropriate starting point is to consider whether there has been unjust enrichment. Therefore, I propose to address the issues raised in the application as follows:
(1) Has Ms. Romain been unjustly enriched?
(2) If so, did the enrichment occur in the context of a joint family venture?
(3) Has a resulting trust arisen?
(4) What is the appropriate remedy?
a. Does the MRPL permit the court to order partition and sale of the home to realize any interest Mr. Kennedy may have in it?
b. If not, does the Partition Act permit the court to order the partition and sale of Mr. Kennedy's equitable interest in the home?
(5) What is the value of Mr. Kennedy's claim?
ANALYSIS
Has Ms. Romain been unjustly enriched?
[ 22 ] The Supreme Court of Canada's decision in Kerr v. Baranow , [2011] 1 S.C.R. 269, 2011 SCC 10 , remains the seminal case regarding the accumulation of property and wealth by unmarried couples. Speaking on behalf of a unanimous court in Kerr , Cromwell J. held that the use of “common intention” resulting trusts, once the principal means of dealing with property disputes between unmarried domestic partners, had no further role to play in remedying such disputes: Kerr , at paras. 15 and 24 . Instead, he held that the law of unjust enrichment, coupled with the remedial constructive trust, was now the preferred approach: Kerr , at para. 23 .
[ 23 ] As Cromwell J. went on to explain, to succeed in a claim for unjust enrichment, a claimant must establish three things:
(1) that the opposing party has been enriched by the claimant;
(2) that the claimant has suffered a corresponding deprivation; and
(3) that there is no juristic reason for the enrichment, meaning that there is no reason in law or justice for the recipient to retain the benefit conferred by the claimant, making it “unjust” in the circumstances of the case: Kerr , at para. 40 .
[ 24 ] I turn now to the evidence as it relates to unjust enrichment. I will start by examining Mr. Kennedy's contributions to the building of the home before moving on to the evidence as it relates to the existence of a joint family venture.
Has there been an enrichment?
[ 25 ] I begin my discussion of this issue by observing that neither party was an ideal witness. Mr. Kennedy’s memory proved faulty at times. For example, he testified that he paid about $5,000 for gravel to install a driveway to the home. However, the invoice he relied upon to support his evidence shows only that he paid $1,877. Mr. Kennedy also testified that he paid about $5,000 for an electrician, but the bill only shows $1,234 paid.
[ 26 ] Perhaps the best example of Mr. Kennedy's unreliability as a witness comes from his affidavit dated October 3, 2023, which was filed in connection with the motion for partial summary judgment. At para. 6 of that affidavit, Mr. Kennedy deposed that the Yellek Trail home was substantially complete by November 2013, and not September 2015, as deposed by Ms. Romain in an earlier affidavit. Clearly, Mr. Kennedy's evidence cannot be true. All of the bills and payments I will discuss below were created or took place in 2015. Because of discrepancies like these, Mr. Kennedy was not a reliable witness.
[ 27 ] Ms. Romain, on the other hand, seemed to remember certain things better than did Mr. Kennedy. For example, she purported to recall the exact day the carpenter finished at the Yellek Trail home because she says she drove him home that day. She also purported to remember the exact day that the well was drilled. However, while Ms. Romain might have seemed at the beginning to be a better witness than was Mr. Kennedy, in the end she proved to be a lot less credible, and therefore no more reliable.
[ 28 ] Ms. Romain embellished aspects of the evidence that she perceived to be helpful to her case and minimized aspects of the evidence that she thought might help Mr. Kennedy’s case. As an example of the former, during her evidence-in-chief, I asked her why she was receiving a CPP disability pension. Although I suspect that she receives the pension for one or two disabling conditions, she went on to list so many that I stopped writing at five. As an example of the latter, when Ms. Romain was testifying about the work Mr. Kennedy did to clear the building lot, she testified that he merely “moved a few rocks.”
[ 29 ] Ms. Romain was also flippant at times while giving her evidence. For example, when she was asked about what she had done with a boat and trailer that belonged to Mr. Kennedy's stepbrother, who helped build the home, she testified that it was “gone a long time ago”, that she had gotten nothing for it, that in fact she had to pay someone to take it to the dump, and that the people who took it to the dump may have kept the trailer, rather than dispose of it, as she had directed.
[ 30 ] Certain answers Ms. Romain gave during her pre-trial questioning which were read in at trial provide perhaps the best example of how Ms. Romain embellished her evidence. Ms. Romain was asked about a carpenter whom Mr. Kennedy had engaged to frame the house. She was asked (beginning at question 141):
Q. So you mentioned that there were people who helped to build the house, correct?
Rather than simply saying “yes”, Ms. Romain responded:
A. No. Just this man, this guy from Capreol, he never built a house in his life
and …
Q. What was his name?
A. [Redacted].
Q. Okay.
A. He was a customer at the Legion [where Ms. Romain used to work]. He was an alcoholic.
Q. Okay.
A. He went through a lot of cases of beer building the house.
Q. And is it your understanding that those cases of beer were purchased by [Mr. Kennedy]?
A. Sometimes. Sometimes he’d have to buy his own because [Mr. Kennedy] wouldn’t buy it for him …
[ 31 ] These answers demonstrate the way Ms. Romain would minimize, even criticize, Mr. Kennedy’s contributions toward the building of the home by criticizing the people he hired to help him build it.
[ 32 ] Ms. Romain went beyond mere embellishment at times. In her affidavit of October 2, 2023, Ms. Romain deposed that Mr. Kennedy’s own financial disclosure revealed that he paid only $10,074.02 toward the construction costs of the home from October 2015 to January 2020. She also deposed that all the receipts that had been provided by Mr. Kennedy were in her name and that some had been signed by her. The inference that Ms. Romain was clearly asking the court to draw from this evidence was that she had paid all of the construction costs apart from the $10,074.02. As I will demonstrate, this was obviously false.
[ 33 ] If Ms. Romain’s evidence was mistaken, then it was a large mistake and reflects poorly on Ms. Romain’s reliability as a witness. If Ms. Romain’s evidence was knowingly false, as I believe it was, then it reflects equally poorly on Ms. Romain’s credibility as a witness.
[ 34 ] Because of the reliability issues with Mr. Kennedy’s evidence and the credibility issues with evidence of Ms. Romain, in arriving at a decision in this case about the contributions made by the parties to the building of the home, I have relied as much as possible on documentary evidence and admissions made by the parties against their own interests.
[ 35 ] In the remaining portions of my analysis on this issue, I will refer to various aspects of the building process to organize and guide my discussion about who contributed what.
Lot Clearing
[ 36 ] As I mentioned, Ms. Romain testified that she and her mother cleared the lot to build the home, and that all Mr. Kennedy did was “move a few rocks”. I do not accept this evidence. Instead, I find Mr. Kennedy’s evidence on this aspect of the build to be more credible. He testified that he and Darcy Raycraft cleared the lot. In an affidavit dated July 3, 2025, Mr. Kennedy deposed that he paid Raycraft, who owned Northern Tree Service, approximately $800 for his work.
[ 37 ] Unfortunately, because of the reliability issues with Mr. Kennedy’s evidence to which I referred earlier, I cannot accept that he paid this money. There is no documentary or other evidence to support it.
Road Building
[ 38 ] However, as I also mentioned earlier, there is documentary evidence to support Mr. Kennedy's evidence about paying to build the road to the house. Based on the invoice, I accept that Mr. Kennedy paid $1,877 to Roleo Seguin to do so, rather than the $5,000 mentioned by Mr. Kennedy in his testimony.
House Kit
[ 39 ] Both Mr. Kennedy and Ms. Romain testified that Ms. Romain paid $20,000 to Carry All Builders Supplies Ltd. (“Carry All”) for a “house kit”, which Ms. Romain said included building plans for the house. Based on the rest of the evidence, it also appears to have included at least some of the materials.
[ 40 ] Because the parties agree on this, I would include it in Ms. Romain's contributions to the construction of the home, even though it is not fully supported by any documentary evidence.
Foundation
[ 41 ] Mr. Kennedy admits that Ms. Romain paid for the cement blocks used to construct the foundation of the home. However, I am not clear on the amount she paid. At one point in the evidence, the sum of $10,000 was mentioned. This makes sense if one accepts the evidence of Ms. Romain in her October 3, 2023, affidavit that she incurred $30,000 in credit card debt due to the building of the home and the testimony of both parties that $20,000 of that debt was for the home kit.
[ 42 ] However, as there is no documentary support for what was paid for the blocks, I am unable to quantify and include any amount as a contribution by Ms. Romain to the costs of construction of the house.
[ 43 ] The cost of the blocks is not the only construction cost that has not been properly quantified. Mr. Kennedy deposes in his July 3, 2025, affidavit that Mr. Brosseau laid all of the blocks and built the home’s foundation. He said he paid him cash to do the work, but did not say how much.
[ 44 ] With respect to the cost of constructing the foundation, therefore, I have not credited anything to either party.
Framing
[ 45 ] Mr. Kennedy deposed in his affidavit evidence that he paid the carpenter between $12,000 and $15,000 to help him build the house and a further $3,000-$4,000 in additional compensation by way of food, cigarettes, alcohol, and cash.
[ 46 ] As with the lot clearing, however, there is nothing to substantiate Mr. Kennedy’s evidence. While I accept that Mr. Kennedy must have paid the carpenter something, Mr. Kennedy was so far off on some of the amounts he said he paid as compared to the related documentation, that I cannot reach any reliable conclusion on how much he paid the carpenter.
[ 47 ] It must be borne in mind not only that Mr. Kennedy has the onus of proving the amount he contributed, but that it was open to him to call the evidence of witnesses, such as the carpenter, to help him do so. He called no such evidence.
Well-Drilling
[ 48 ] Mr. Kennedy deposes that he paid Gilles Bouffard Drilling Ltd. the sum of $10,500 to drill a well on the property. This is supported by the documentary evidence. Therefore, I credit Mr. Kennedy with this amount towards the overall cost of construction of the home.
Electrical
[ 49 ] Mr. Kennedy testified that he paid about $5,000 to an electrician to wire the house. However, the documentary evidence falls short of fully supporting this evidence. The only bill produced relating to this expense is one for parts in the amount of $1,234. This is the amount that I would use to quantify Mr. Kennedy’s contribution towards wiring the house.
[ 50 ] I also accept that Mr. Kennedy paid the sum of $1,846.26 to Hydro One to run electricity to the home, which evidence is also supported by other evidence.
Roof
[ 51 ] Mr. Kennedy testified that he gave Ms. Romain’s brother, Michael, the money to install a steel roof on both the house and a shed.
[ 52 ] The only documentary support for this expense is an invoice from a supplier named “CM” (the name on the invoice is not clear) in the amount of $1,515.20. For the reasons I have already expressed, this is the amount I would credit Mr. Kennedy for this expense.
Deck
[ 53 ] Mr. Kennedy deposed and testified that he also paid Michael Romain and Ms. Romain’s mother to do work on the deck. However, there is no evidence about how much he paid them.
[ 54 ] Mr. Kennedy also testified that he paid to have the deck sealed so that it would not leak water below. This testimony is supported by an invoice from Nordeck, which indicates Mr. Kennedy paid $8,300 for this work. I would, therefore, credit him for this amount.
[ 55 ] According to Ms. Romain, Mr. Kennedy later purchased and installed a hot tub under the deck. However, she testified that humidity resulted in structural damage. In my view, this evidence is irrelevant to determining the amount of Mr. Kennedy’s contributions to the construction of the home for two reasons. First, Ms. Romain appears to have agreed to or at least acquiesced in the idea of installing a hot tub. Second, it does not appear that Mr. Kennedy is seeking to have the cost of the hot tub considered by the court. There is no evidence as to its cost.
Plumbing and Septic
[ 56 ] Mr. Kennedy deposes that he paid for plumbing for the home. However, he has not said how much he paid, nor is there any documentary or other evidence to help quantify this expense. Therefore, like other such expenses, I am unable to include it as a contribution by Mr. Kennedy.
[ 57 ] The same is true with respect to Mr. Kennedy’s evidence that he paid to install the septic system. There is no evidence as to who or how much he paid for this work.
Furnace
[ 58 ] Mr. Kennedy’s evidence that he paid for the furnace is likewise neither quantified nor supported by other evidence. Therefore, once again, I have not included it as a contribution.
Windows
[ 59 ] There is an entry in Mr. Kennedy’s banking records showing a direct payment to Clearview Windows in the amount of $1,197. Although Mr. Kennedy gave no in-court or affidavit evidence in connection with this expense, he did depose that he “purchased and paid for other materials” needed to build the home.
[ 60 ] Based on Mr. Kennedy’s evidence and on his banking records, I would add this expense to the contributions made by him to the construction of the home.
Other construction Costs
[ 61 ] Mr. Kennedy testified, and his bank records confirm, that he paid the sum of $15,690.81 to Home Hardware (Carry All Builders) on or about May 4, 2016. Mr. Kennedy’s evidence is that he did this because the parties were otherwise going to have to start paying interest on their outstanding indebtedness to the building supplier.
[ 62 ] Ms. Romain did not dispute that Mr. Kennedy paid this sum to Carry All. However, she says that she repaid Mr. Kennedy at the rate of $400 cash bi-weekly for a couple of years towards this debt. Mr. Kennedy strongly denies this. I accept Mr. Kennedy’s evidence about these alleged payments by Ms. Romain. As I have noted, Mr. Kennedy’s evidence suffered reliability issues, but it did not suffer credibility issues. In contrast, Ms. Romain’s credibility did suffer. For that reason, I prefer Mr. Kennedy’s evidence about these $400 payments over that of Ms. Romain.
[ 63 ] Mr. Kennedy did acknowledge during his cross-examination by Ms. Romain that the parties kept a “black book” in which they recorded cash payments made by Ms. Romain to Mr. Kennedy. Mr. Kennedy also acknowledged that the book went missing. However, he testified that the cash payments noted in the book went to repay an $8,500 loan he made to Ms. Romain, not to repay the Carry All expenses, at least not directly. In cross-examination, Ms. Romain agreed that Mr. Kennedy paid about $8,500 of her outstanding Visa debt. However, she also testified that she repaid Mr. Kennedy at the rate of $500 per month in what I understand to be separate payments from the $400 bi-weekly payments that Ms. Romain testified she made towards the outstanding Carry All debt.
[ 64 ] The evidence is obscure, to say the least, as to whether the $8,500 debt was related to the construction costs of the home. In any event, it may be irrelevant, because Mr. Kennedy is not claiming that it did.
Carry All Payments
[ 65 ] In addition to the payments I have already referred to, Mr. Kennedy’s credit union statements show that he made the following direct payments to Carry All:
Date Amount
June 24, 2015 $878.15
June 24, 2015 $1,000.00
June 30, 2015 $270.18
September 10, 2015 $2,000.00
October 14, 2015 $600.00
October 26, 2015 $600.00
October 22, 2016 $1,643.77
September 28, 2017 $222.87
May 5, 2018 $81.64
October 1, 2019 $1,000.00
November 4, 2019 $1,000.00
December 11, 2019 $1,000.00
January 29, 2020 $1,000.00
Total: $11,296.61
Furniture
[ 66 ] Although there was evidence introduced during the trial about various pieces of furniture purchased for the home and who paid for them, it was contradictory and confusing. Even if I could figure out who paid for what, I have no evidence whatsoever about the present value of the items. In any event, I would not add any amount paid for an item that was not a fixture (meaning an item that is affixed to realty for the better enjoyment of the realty, rather than the item) to Mr. Kennedy's interest in the home.
Additional Carry All Payments
[ 67 ] In addition to producing his credit union financial statements, Mr. Kennedy also produced invoices and statements from Carry All. The documents were all in Ms. Romain's name. I accept Mr. Kennedy's explanation that this was done because Ms. Romain was exempt from paying sales tax due to her Indigenous status.
[ 68 ] As I pointed out during the trial, however, the invoices do not indicate that they were paid. Rather, they appear to indicate that credit was extended for the items referred to in each invoice. On the other hand, two statements, one from July 2015, and the other from September 2015, do show certain payments being made. Many of these payments are already accounted for in the credit union statements because they were made directly to Carry All. However, others are not reflected in the credit union statements. These are as follows:
Date Amount
July 9, 2015 $62.56
July 10, 2015 $903.85
September 8, 2015 $1,000.00
September 11, 2015 $35.40
September 16, 2015 $12.95
September 19, 2015 $15.36
September 23, 2015 $168.83
September 23, 2015 $30.20
September 29, 2015 $196.00
Total: $2,425.15
Total of Mr. Kennedy’s Contribution
[ 69 ] By my calculation, all of the expenses credited to Mr. Kennedy total $57,382.03 . Based on the evidence to which I have referred, I find this to be the value of Mr. Kennedy’s contributions to the home.
Has there been a corresponding deprivation?
[ 70 ] As Cromwell J. pointed out in Kerr , at para. 37 , the Supreme Court has taken a “straightforward economic approach to the first two elements of unjust enrichment – enrichment and corresponding deprivation.” The mutual conferral of benefits by the parties is not considered at this stage: Kerr , at para. 113 ; Granger v. Granger , 2016 ONCA 945 , at para. 50 .
[ 71 ] There is no question that Mr. Kennedy was deprived of the $57,382.03 he put into building the home. There is also no question that Ms. Romain has been left with a disproportionate share of the value of the home. As per Kerr , the question of whether an off-setting benefit was conferred on Mr. Kennedy and his intention in making his contribution must be considered later in the analysis.
Is there a juristic reason for the enrichment?
[ 72 ] The third prerequisite to establishing unjust enrichment, the absence of a juristic reason, involves two steps or stages. In the first stage, the claimant must demonstrate that there is no established category of juristic reasons to allow the recipient to retain the benefit conferred. These established reasons include contract, disposition of law, donative intent, or other valid common law, equitable, or statutory obligations: Kerr , at para. 43 , citing Garland v. Consumers’ Gas Co. , [2004] 1 S.C.R. 629, 2004 SCC 25 , at para. 44 . Where the absence of such a reason is established, the claimant will have made out a prima facie case of unjust enrichment.
[ 73 ] In the second stage, the recipient may then rebut the prima facie case by showing that there is another reason to deny recovery: Kerr , at para. 43 , Garland , at para. 45 . It is at this stage of the juristic reason analysis that the reasonable expectations of the parties may be relevant and where the recipient may seek to demonstrate that the claimant had no reasonable expectation of compensation: Kerr , at para 44 ; Granger v. Granger , 2016 ONCA 945 , at para. 77 . The court may also consider moral and policy-based arguments about whether particular enrichments are unjust at this stage: Kerr , at para. 44 .
[ 74 ] While the conferral of mutual benefits may be considered at this stage, they may only be considered to the extent that they provide evidence relevant to the parties’ reasonable expectations. Otherwise, the question of mutual conferral of benefits should be considered at the defence and/or remedy stage of the unjust enrichment analysis: Kerr , at para. 116 . As to the defences that may be advanced, see the decision of Huddard J.A. in Wilson v. Fotsch , 2010 BCCA 226 , at paras. 39-44 .
The Existence of An Established Reason
[ 75 ] Both parties testified that there was no intent by Mr. Kennedy to make a gift of his contributions to Ms. Romain. I accept that. However, that can only be true of a gift made during his lifetime.
[ 76 ] Both in his affidavit evidence and at trial Mr. Kennedy said that he did not intend to make a gift to Ms. Romain of his contributions to the building of the home. Ms. Romain said the same thing. However, Mr. Kennedy never said what his intentions actually were. Based on the evidence that Mr. Kennedy agreed to contribute to building a home on the Yellek Trail property after Ms. Romain announced plans to rent an apartment in North Bay, I believe that Mr. Kennedy planned to live with Ms. Romain in the home. Based on the evidence that Mr. Kennedy knew from the very beginning that he could not have an ownership interest in the land because he was not a member of the band, I conclude that Mr. Kennedy planned to live in the home until he was no longer naturally able to do so and that Ms. Romain would then get the benefit of his contribution solely to herself upon his death. If this is true, then Mr. Kennedy's contribution amounted to the payment of rent in advance.
[ 77 ] There is evidence that Ms. Romain was making efforts to repay Mr. Kennedy, or at least to equalize their contributions, before Mr. Kennedy left the home in May 2020. Based on this evidence, it is possible that the parties intended that Mr. Kennedy's contribution would be a loan of some type. In either case, whether Mr. Kennedy's contribution was by way of rent or by way of a loan, I am not satisfied that he has established the absence of a juristic reason for the entire amount by which Ms. Romain was enriched.
[ 78 ] Ms. Romain adopted the position that Mr. Kennedy would have paid in rent at least what he contributed to the building costs. However, such a position ignores the fact that, had the relationship not broken down, Mr. Kennedy would have benefitted much more from the money he invested in building the home than he has, or been repaid more of it. It also ignores the fact that Ms. Romain also lived rent-free in the home, as well, and continues to do so.
The Existence of Any Other Reason
[ 79 ] As I mentioned earlier, in Kerr , Cromwell J. held that it is at the second stage of the juristic reason analysis that the court should consider the legitimate expectations of the parties: Kerr , at para. 44 . It is also at this stage that the court may consider moral and policy-based arguments: Kerr , at para. 44
[ 80 ] As I have tried to demonstrate, it is difficult to discern the parties’ expectations in this case. To the extent that I have been able to do that, I have considered them in the first stage of juristic reason analysis, where the onus is on Mr. Kennedy to establish the absence of an existing juristic reason for the enrichment. As I have explained, he has failed to do that with respect to the entire amount of his contribution. However, if it is incorrect to consider the mutual conferral of benefits (i.e. rent or loan in exchange for use of the home during Mr. Kennedy's lifetime) in the first stage of juristic reason analysis, as I have done, I would consider them in this part, in which the onus is on Ms. Romain. Based on the evidence, I am satisfied that Ms. Romain has established the existence of another juristic reason for her receipt of that portion of Mr. Kennedy's contribution that might reasonably be expected to have compensated her for the time he lived in the Yellek Trail home.
[ 81 ] I will return to the issue of the parties’ intentions when I consider whether they were involved in a joint family venture and again when I consider the appropriate award.
Conclusion on the Issue of Unjust Enrichment
[ 82 ] For the foregoing reasons, I conclude that Ms. Romain was unjustly enriched to the extent of that portion of Mr. Kennedy’s contribution that was not repaid and could not substitute for rent once he was forced to leave the home in May 2020. I will return to the quantification of the enrichment when I address the issue of what remedy is appropriate.
Was there a joint family venture?
[ 83 ] In Kerr , the Supreme Court held that, where unjust enrichment is established, the remedy may be either personal or proprietary. The usual personal remedy is a monetary one: Kerr , at para. 47 . However, the monetary remedy is not limited to what might be awarded on a “fee-for-services”, “value received”, or quantum meruit basis. Instead, where a claimant can establish that the parties were engaged in a “joint family venture”, it may be more appropriate to base the monetary award on a “value survived” basis, having regard to the overall increase in the couple's wealth during the relationship: Kerr , at paras. 49 and 80 . Where this is the case, the claimant will be awarded a proportionate share of the accumulated wealth.
[ 84 ] Thus, as the decision in Kerr instructs, the question of whether there was a joint family venture arises only after it has been determined that there was unjust enrichment. The existence of such a joint family venture affects the remedy; it is a circumstance that may lead to unjust enrichment, not a stand-alone basis for intervention: Reiter v. Hollub , 2017 ONCA 186 , at para. 26 .
[ 85 ] In Kerr , Cromwell J. discussed the hallmarks of a joint family venture: Kerr , at paras. 87-99 . These include the extent to which the parties worked collaboratively towards common goals, the extent of the parties’ economic integration, the parties’ actual intent, and the extent to which the parties prioritized their family.
[ 86 ] An analysis of these factors reveals that the evidence of a joint family venture in this case is weak.
Mutual Effort
[ 87 ] Perhaps the strongest evidence of a joint family venture is the evidence of the mutual effort put forward by the parties towards the construction of the home. Ms. Romain testified that the parties applied together for a mortgage to build the home. She said that they were denied because Mr. Kennedy had gone bankrupt previously. I do not give the evidence about Mr. Kennedy's bankruptcy any weight because Mr. Kennedy was not asked any questions about it during his testimony. I also note the affidavit evidence that Ms. Romain had also previously gone bankrupt. Nonetheless, I do accept that the parties applied together for a mortgage, which they did not get. I see that as evidence of mutual effort.
[ 88 ] There is also evidence of mutual effort during the building process. Although Ms. Romain disputed the extent of Mr. Kennedy's efforts towards clearing the lot, she admitted that he did at least some work. It also appears that the parties collaborated on such things as the plans for the house and the materials used to build it. While Ms. Romain was again critical of Mr. Kennedy's choices of trades people, it appears that they were hired with at least the tacit approval of Ms. Romain. The parties also collaborated on what furniture to put in the house once it was built, although they disagreed about who paid for what, which brings me to a consideration of economic integration, or rather the lack of it in this case.
Economic Integration
[ 89 ] Throughout their relationship, the parties maintained their own bank accounts. There were two exceptions to this. For a period of about one year after the home was built, Ms. Romain was added to one of Mr. Kennedy's accounts. Mr. Kennedy testified that this was because he was facing some health challenges, and he wanted Ms. Romain added to the account “in case anything happened” to him. Ms. Romain admitted she was placed on the account, but said it was so that Mr. Kennedy could control her. During the time that Ms. Romain was on the account, she never made any deposits into it, nor any withdrawals from it. There was no comingling of funds whatsoever.
[ 90 ] The parties were also joint account holders on another account. The evidence of Ms. Romain includes a copy of a bank statement from an unidentified financial institution for the period from December 28, 2018, to March 13, 2020. Ms. Romain alleges that Mr. Kennedy improperly withdrew $30,000 from this account, half of which she wants back. I have chosen to deal with this claim here, rather than as a separate claim, because it is tied into the evidence on the other issues.
[ 91 ] There is no evidence from Mr. Kennedy that I can find in his affidavits, nor in his testimony, relating to this account. Nonetheless, I do not accept Ms. Romain's claim that she is entitled to one-half of the amount withdrawn from this account. As I explained earlier, I did not find Ms. Romain to be a credible witness. Nor was either party a reliable one. For that reason, I have relied on the documentary proof in reaching my decision on all of the issues, where possible, including this one.
[ 92 ] The bank statement submitted by Ms. Romain appears to indicate that virtually all of the money deposited into the joint account came from Mr. Kennedy's pension. The one notable exception was a deposit of $3,000 on one occasion in June 2019. However, that exact amount was withdrawn by means of two withdrawals in August 2019. The withdrawal of $30,586.23, which I accept was by Mr. Kennedy, was accomplished by means of two withdrawals on February 26, 2020, just after the parties separated, and appears to have been all of the money that was left in the account at the time.
[ 93 ] Thus, it appears that all of the money that was withdrawn by Mr. Kennedy came from Mr. Kennedy's pension. In these circumstances, I am not persuaded that Ms. Romain is entitled to any of that money.
[ 94 ] The parties also maintained separate finances outside of the bank. Although there is a dispute about what the debt was for, there is evidence that accounts were kept in a black book of payments made by Ms. Romain towards a debt she owed Mr. Kennedy. It also appears that the parties tried, for a time at least, to equalize the amounts they were each contributing to the costs of constructing the home, with Ms. Romain paying for the concrete blocks and the building kit, and Mr. Kennedy paying for such things as running the road and electricity into the building site.
[ 95 ] There is also evidence that Ms. Romain incurred charges on her credit card during the building process. I accept her evidence that this debt was incurred, in large measure, for costs associated with building the home. In his affidavit of July 3, 2025, Mr. Kennedy deposed that he lent Ms. Romain $8,500 to pay off the debt “most of which was paid back.”
[ 96 ] Beyond the costs of building, the evidence is that the parties split the expenses of maintaining the property, whether equally or not. Mr. Kennedy testified that he paid for the car and home insurance, the latter of which was conceded by Ms. Romain. Mr. Kennedy also testified that Ms. Romain paid for the Internet, hydro, and gas most of the time.
[ 97 ] As I mentioned earlier, there is also evidence that each party contributed separately to the purchase of furniture and appliances for the home, although the parties do not agree on who paid for what.
[ 98 ] Overall, the evidence of economic integration is weak. This is not a case where the parties contributed to a joint fund from which they paid their common expenses. In fact, it was the exact opposite.
The Parties’ Intentions
[ 99 ] Ms. Romain agreed with a suggestion during cross-examination that the parties were involved in a joint family venture. However, Ms. Romain was self-represented by the time of trial, and the legal meaning of that term was not explained to her while she was being questioned. I doubt she understood it. Based on the way Ms. Romain belittled everything done by Mr. Kennedy towards the building of the home, I believe that she would not have agreed that they were involved in a joint family venture if she knew that the existence of such a venture might lead to an order that Mr. Kennedy is entitled to a proportionate share of the present value of the home.
[ 100 ] In any event, the question about whether the parties were involved in a joint family venture was posed in the course of a cross-examination dealing only with the home. It is not appropriate to apply the concept of a joint family venture to the acquisition or improvement of a single piece of property: Thompson v. Swietlinski Estate , 2019 ONSC 7310 , at para. 32 ; Kerr , at paras. 59-60 . As a result, I give no weight to Ms. Romain's opinion as to the legal nature of the parties’ endeavors.
[ 101 ] It is difficult to discern the parties’ actual intentions based on the rest of the evidence. Both in his affidavit evidence and at trial Mr. Kennedy said that he did not intend to make a gift to Ms. Romain of his contributions to the building of the home. However, as I noted earlier, he never said what his intentions actually were. While I accept his evidence that he did not intend to make a gift to Ms. Romain, that can only be true of a gift made during his lifetime. Mr. Kennedy knew from the outset that he could never possess the Yellek Trail property as a non-band member.
[ 102 ] Based on the evidence of Ms. Romain that Mr. Kennedy agreed to contribute to building a home on the Yellek Trail property after she announced plans to rent an apartment in North Bay, which was not challenged on cross-examination, I believe that Mr. Kennedy planned to live with Ms. Romain in the Yellek Trail home until he died, at which point the home would be occupied only by its owner, Ms. Romain. Although I reject Ms. Romain's submission that Mr. Kennedy should have no interest in the home now because he saved rent money, I do accept that he must have considered that investing in the home was better than paying rent while he was alive.
[ 103 ] My conclusion that Mr. Kennedy intended to make a gift of his interest in the home after his death is supported by uncontradicted evidence that Mr. Kennedy irrevocably designated Ms. Romain as the beneficiary of the death benefits payable under his pension plan. My conclusion is also supported by the evidence that Mr. Kennedy added Ms. Romain to his bank account while he was facing health challenges. This evidence does weigh in favour of finding a joint family venture. However, as I will come to, it is not enough to tip the scales in favour of such a finding.
[ 104 ] As for Ms. Romain's intentions, I conclude that she intended to pay for her share of the building costs, although she did not succeed completely. One of the reasons I reach this conclusion is the evidence I have already referred to about the expenses she bore at the beginning of the project, including the cost of the house kit and the concrete blocks. Another is the evidence that she worked at a chip stand Mr. Kennedy purchased for $7,000 in 2015. Ms. Romain testified that she did all the work, but the business made no money. She said that Mr. Kennedy sold it for $19,000 and she “saw nothing from it.” [1] I take it from this evidence that the parties were trying to generate income to cover Ms. Romain's share of the building costs.
[ 105 ] While I reject Ms. Romain's evidence that she paid $400 bi-weekly to Mr. Kennedy towards her share of the costs of building, I note that Mr. Kennedy never denied that she was supposed to do so. In my view, this is more evidence from which to conclude that the parties intended to contribute more or less equally to the costs of construction and maintenance of the home. While this might support a finding that there was a joint family venture, it must be weighed against Mr. Kennedy's knowledge that he could not own any part of the home.
Family Prioritization
[ 106 ] The parties had no children together that either party had to prioritize over the accumulation of their own wealth. While a family unit can consist of just two people, as it did in this case, there is not much evidence that either party prioritized the other, or their relationship, either.
[ 107 ] Mr. Kennedy was no longer working when he met Ms. Romain and was receiving a fixed income. For that reason, Mr. Kennedy's career never needed to be given any priority. With one exception, the same seems to be true as it relates to Ms. Romain's work. Ms. Romain was working as a server when she met Mr. Kennedy and worked in that capacity for different employers prior to the COVID-19 pandemic, at which time she began receiving Canada Emergency Response benefits. After the pandemic, Ms. Romain worked for another restaurant before going to work as a dietary aid at a seniors’ residence. She quit that job in 2023 to go to school. By then, the parties had separated.
[ 108 ] The sole exception to the separate career paths of the parties is the evidence of Ms. Romain about the chip stand that Mr. Kennedy purchased so that she could earn income during the time the home was being built.
[ 109 ] As I mentioned, Mr. Kennedy did testify that Ms. Romain was added as an account holder on one of his credit union accounts for a period of time while he was ill. Although Ms. Romain attempted to characterize this gesture as just another example of how abusive Mr. Kennedy was, for the reasons I mentioned earlier when discussing her credibility, I prefer the evidence of Mr. Kennedy in most respects, including this one.
[ 110 ] The evidence I mentioned earlier about designating Ms. Romain as the beneficiary of Mr. Kennedy's bank accounts and pension plan is also likely relevant when considering family prioritization. I have also considered the evidence that Mr. Kennedy resided with Ms. Romain at her invitation after the parties separated in 2023, when Mr. Kennedy was recovering from cataract surgery. However, even that evidence is rife with controversy, as Mr. Kennedy accuses Mr. Romain of inviting him so that she could steal money from him. In any event, it does not appear that Ms. Romain was required to make any financial sacrifices at the time to care for Mr. Kennedy.
[ 111 ] The rest of the evidence in this case weighs against finding that either party gave priority to the other or to their relationship. They each accuse the other of abuse of one form or another throughout their relationship. Ms. Romain accuses Mr. Kennedy of mental and sexual abuse. Mr. Kennedy accuses Ms. Romain of mental and emotional abuse. They both accuse each other of financial abuse.
Conclusion On the Issue of a Joint Family Venture
[ 112 ] As I mentioned earlier, it is not appropriate to apply the concept of a joint family venture to the acquisition or improvement of a single piece of property, as I was asked to do in this case. Instead, I have examined the entire relationship between the parties. While that examination reveals some evidence of the existence of a joint family venture, the weight of the rest of the evidence is against it.
Has a resulting trust arisen?
[ 113 ] While the Supreme Court in Kerr did away with the common intention resulting trust as a vehicle through which to resolve property disputes between unmarried couples, it did not do away altogether with resulting trusts. As the court made clear at paras. 15 and 29, the law of traditional resulting trusts remains the same after Kerr as it did before. Where one adult gratuitously transfers money or property to another, the law presumes a bargain, and not a gift. In such a situation, a presumption arises that the transferee holds the transferred property in trust for the transferor: Kerr , at paras. 18 and 19 , citing Pecore v. Pecore , 2007 SCC 17 , [2007] 1 S.C.R. 795. The presumption of resulting trust governs unless the transferee can demonstrate that the transferor intended to make a gift.
[ 114 ] More recently, the Supreme Court of Canada held in Rascal Trucking Ltd. v. Nishi , 2013 SCC 33 , [2013] 2 S.C.R. 438, that the law of resulting trusts has not been overtaken by the law of unjust enrichment discussed in Kerr . As the court said in Rascal , at para. 26, “the purchase money resulting trust has been a feature of the common law since at least 1788 and provides certainty and predictability in situations where a person has made a gratuitous advance.”
[ 115 ] Where a resulting trust arises because of a gratuitous transfer for the purpose of purchasing or improving property, the usual remedy is a proprietary award. In Rascal Trucking , at para. 29, the Supreme Court wrote:
In the context of a purchase money resulting trust, the presumption is that the person who advanced purchase money intended to assume the beneficial interest in the property in proportion to his or her contribution to the purchase price… [Citation omitted.]
[ 116 ] As I have already mentioned several times, neither party in this case takes the position that Mr. Kennedy intended to make a gift of his contribution to the building of the Yellek Trail home. However, for reasons I have explained, that can only be true of a gift made during his lifetime. Mr. Kennedy knew he could never acquire a proprietary right to NFN land as a non-band member. For that reason, I find that Mr. Kennedy either intended to loan Ms. Romain the money and was not fully repaid, or intended his contribution to substitute for rent and to make a gift of his contribution to Ms. Romain once he was no longer able to live in the home due to natural causes. In either case, Mr. Kennedy's contribution was not gratuitous.
[ 117 ] In these circumstances, no resulting trust arises.
What is the appropriate remedy?
[ 118 ] As discussed above, the usual remedy for unjust enrichment is a monetary one: Kerr , at para. 47 . However, a proprietary award, rather than a personal one, may be appropriate where a claimant can demonstrate: (1) a link or causal connection between his or her contributions and the acquisition, preservation, maintenance, or improvement of the disputed property, and (2) that a monetary award would be insufficient in the circumstances: Kerr , at paras. 50 and 51 . In such a case, a share of the property proportionate to the unjust enrichment can be impressed with a constructive trust in favour of the claimant: Kerr , at para. 50 .
[ 119 ] Mr. Kennedy has demonstrated the necessary link between his contributions and the improvement of the disputed property. He argues that a monetary remedy would not be appropriate in this case. I disagree. However, before I explain why, I will address the availability of a proprietary remedy in this case.
The Possibility of a Proprietary Remedy
[ 120 ] Even if it was available, calculating the value of a proprietary award in this case would be a difficult task. To be able to assess Mr. Kennedy's percentage beneficial ownership in the home, it would be necessary to know the value of the total contributions of the parties to the building of the home, including the contribution of the land, and then attribute to each party the corresponding percentage that their contribution represents of the overall value. So far, the only value I have determined is the value of Mr. Kennedy's contribution.
Value of Ms. Romain's Contribution
[ 121 ] With respect to Ms. Romain's contribution, Ms. Klein submits that her proven financial contributions to the cost of building the home total $13,450. This figure is based on the premise that Ms. Romain was only able to prove that she made one $10,000 payment towards the house kit and adding that amount to proven payments by Ms. Romain to Carry All in the amount of $3,450.
[ 122 ] I am unable to accept this submission. Mr. Kennedy twice admitted during his evidence that Ms. Romain paid $20,000 for the house kit. At a minimum, therefore, Ms. Romain contributed $23,450 to the construction costs. In fact, however, Ms. Romain's financial contribution was probably higher than this. The parties agree that she paid for the cinder blocks used to build the foundation. Regrettably, I have no clear evidence as to how much those were. It is possible that the cost of the blocks was part of the $30,000 credit card debt Ms. Romain said she incurred to build the home, but never supported with any documentation. Unfortunately, I do not know if that credit card debt included part of the house kit, the blocks, both, or neither. Nor do I know if the $8,500 loan that Mr. Kennedy said Ms. Romain mostly repaid him was part of this credit card debt, or some other.
[ 123 ] In addition to her financial contributions, of course, Ms. Romain contributed the land. But what is the value of that land? I also have no clear evidence about this. The author of the 2022 appraisal, Tom Stone, discounted the value of the home by 20 percent compared to homes on land that were not leased. Based on Mr. Stone's appraisal of $240,000, his 20 percent discount amounted to $60,000. However, this is not the value of the land. It is only evidence that it does have value.
[ 124 ] All I can say with any degree of certainty based on the evidence I have before me is that Ms. Romain contributed at least as much to the overall cost of constructing the home as did Mr. Kennedy, if one considers the value of the land on which it sits.
Overall Cost of Construction
[ 125 ] Because it is not possible to determine the value of Ms. Romain's contribution, there is also no reliable way of determining the overall cost of construction of the home. While there is some evidence of the financial costs, such as invoices from Carry All, there were also cash payments made in amounts that I am unable to quantify for the reasons I have already given.
[ 126 ] As a result, I am left just with the totals given by or on behalf of the parties. Ms. Klein estimated that the total cost of constructing the home was $87,454. Ms. Romain estimated that the total cost of constructing the home was $100,000. These totals are not that far apart. Of these two figures, I prefer that of Ms. Romain. In my view, it better reflects the cash payments that were made by Mr. Kennedy to the various individuals who helped to build the home.
[ 127 ] Fortunately for me, however, I do not have to calculate Mr. Kennedy's proportionate share of the value of the home. I say this for three reasons. First, as I have explained, Mr. Kennedy has failed to prove that his transfer was gratuitous and, therefore, no resulting trust arises. Second, as I will explain shortly, I am not persuaded that a monetary award is insufficient to remedy the unjust enrichment. And thirdly, as I am about to demonstrate, even if a proprietary remedy was appropriate in this case, it would not be possible because Mr. Kennedy is not a band member.
[ 128 ] To explain why a proprietary remedy is not available in this case, I will begin by discussing Ms. Klein's submission that the MRPL gives the court the power to grant a proprietary remedy before discussing briefly her alternative submission that such a power is available through the Partition Act .
Does the MRPL permit the court to order partition and sale of the home to realize Mr. Kennedy's interest in it?
[ 129 ] Mr. Kennedy submits that the MRPL empowers the court to order the partition and sale of the Yellek Trail home to realize his interest in it. I disagree.
[ 130 ] To explain why, I will organize my discussion around the modern approach to statutory interpretation, which requires that "the words of an Act are to be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament": Rizzo & Rizzo Shoes Ltd. (Re) , [1998] 1 S.C.R. 27; Piekut v. Canada (National Revenue), 2025 SCC 13 , 502 D.L.R. (4th) 1, at paras. 42-50 ; Telus Communications Inc. v. Federation of Canadian Municipalities, 2025 SCC 15 , 502 D.L.R. (4th) 59, at paras. 30-36 . While this approach to statutory interpretation considers the text, context, and purpose of a provision, the text of the legislative provision at issue must always be the "anchor" of the interpretive exercise: Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 , [2019] 4 S.C.R. 653, at paras. 120-21 ; Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Directrice de la protection de la jeunesse du CISSS A , 2024 SCC 43 , 498 D.L.R. (4th) 316, at para. 24 .
[ 131 ] Therefore, I will start with the text.
Text
[ 132 ] The MRPL defines spouses as including both married and unmarried couples. Section 4(8)(a) defines “spouse” as meaning a person who is “married to another, whether by a traditional customary, religious or civil ceremony, and includes a Spouse by Common-Law Partnership”. The MRPL does not define the meaning of “common-law partnership”. However, the parties agree that they both fit the definition of spouse within the meaning the MRPL as a result of their relationship.
[ 133 ] The parties also agree that the home in question is a matrimonial home within the meaning of the MRPL, which defines a “matrimonial home” in s. 4(6) as meaning:
an interest in Nipissing First Nation land that is or, if the spouses have separated, was at the time of the separation, ordinarily occupied by the person and his or her spouse as their family residence…
[ 134 ] The parties disagree, however, as to whether the Yellek Trail home can be partitioned and sold under the MRPL to recognize Mr. Kennedy's interest in the home. Mr. Kennedy relies on s. 34 of the MRPL, which reads:
Subject to this law, the court may make any order in relation to interests in Nipissing First Nation land held by a spouse, or by both spouses, including in appropriate circumstances:
(a) an order that an interest in Nipissing First Nation land be transferred to a spouse absolutely, where permitted under this law,
(b) an order that an interest in Nipissing First Nation land be subject to a lease by one spouse to the other for a term of years subject to such conditions as the court deems just in all the circumstances; or
(c) an order that an interest in Nipissing First Nation land held by both spouses be partitioned or partitioned and sold.
[ 135 ] On behalf of Mr. Kennedy, Ms. Klein argues that the only portion of this section that limits the type of relief that can be granted because of restrictions on who can own NFN land is s. 34(a). She submits that s. 34(c) is not similarly restricted and, therefore, gives the court the power to order the partition and sale of Mr. Kennedy’s interest in the Yellek Trail home to an NFN band member. She argues that the specific power in s. 34(c) to order partition and sale is an example of the broader power given to the court under s. 34 to make “any order” in relation to interests in NFN land held by a spouse or by both spouses. Ms. Klein submits that the power to order partition and sale is illustrative, not definitive.
[ 136 ] I am unable to agree.
[ 137 ] The opening words of s. 34 (“subject to this law”) confine the power of the courts to make orders under that section to orders that can be made under the rest of the MRPL. Thus, the words “any order” are constrained to being any order that can be made under the MRPL, not simply any order.
[ 138 ] This is recognized in s. 34(c), which provides that only land that is held by both spouses can be partitioned and sold. The section reads this way in recognition of the fact that non-band members cannot have an interest in NFN land. I will return to this important constraint when I discuss the context in which the MRPL was passed. For now, it is important to highlight that, by the terms of s. 34(c) itself, only land held by two band members can be partitioned and sold.
[ 139 ] Ms. Klein also relies on s. 52 of the MRPL, which reads:
Regardless of which spouse holds an interest in Nipissing First Nation land that is a matrimonial home, the court may on application:
(a) order the delivering up, safekeeping and preservation of the interest in Nipissing First Nation land that is a matrimonial home,
(b) direct that one spouse be given exclusive possession of the interest in Nipissing First Nation land that is a matrimonial home, or part of it for such period as the court may direct consistent with this law, and release any other interest in Nipissing First Nation land that is a matrimonial home from the application of this part;
(c) authorize a disposition or encumbrance consistent with First Nation law of a spouses [ sic ] interest in Nipissing First Nation land that is a matrimonial home, subject to the other spouse’s right of exclusive possession as ordered;
(d) where it appears that a spouse has disposed of or encumbered an interest in Nipissing First Nation land that is a matrimonial home in a fraudulent manner calculated to defeat the rights of the other spouse under this law, or has falsely and knowingly represented in connection with thae disposition or encumbrance that the interest in Nipissing First nation land is not a matrimonial home direct the other spouse to substitute other interests he or she holds in Nipissing First Nation land for the matrimonial home subject to such conditions as the court considers appropriate;
(e) make any interim or temporary order to give effect to the purposes of this law or to protect the rights of a spouse; or
(f) make any ancillary order which the court deems necessary to give effect to this law.
[ 140 ] On behalf of Mr. Kennedy, Ms. Klein highlights that s. 52 applies even where only one spouse holds an interest in NFN land. She argues that s. 52(f) permits the court to make “any” order it deems necessary to give effect to the MRPL, including an order for the partition and sale of Mr. Kennedy's equitable interest in the Yellek Trail home.
[ 141 ] Once again, I am unable to agree.
[ 142 ] As Ruth Sullivan points out in her text, Sullivan on the Construction of Statutes , 7th ed (Toronto: LexisNexis, 2022), at §8.03, the presumption against tautology presumes that law makers avoid superfluous or meaningless words; every word is presumed to have a specific role to play in advancing the purpose of the law. Thus, the word “ancillary” in s. 52(f) matters. That word means “associated” or “secondary”: Canadian Oxford Dictionary , 2nd ed. (Don Mills: Oxford University Press, 2004). Therefore, s. 52(f) only gives the court the power to make orders that give effect to other orders properly made under the MRPL. It does not give the court the power to make substantive orders that are not ancillary. As I will explain in the next section, the MRPL cannot empower the court to make a substantive order granting a non-band member a beneficial interest in a matrimonial home on NFN land. For that reason, s. 52(f) has no role to play in this case.
Context
[ 143 ] Under s. 91(24) of the Constitution Act, 1867 , the federal government (Parliament) is given authority to make laws governing “Indians, and Lands reserved for the Indians”. The main piece of legislation enacted under this section is the Indian Act , R.S.C., 1985, c. I-5. The Act creates “reserves” of land held by the federal government “for the use and benefit of the respective bands for which they were set apart”: Indian Act , s. 18. Ownership of land on a reserve is tightly controlled under the Act. A band member can only lawfully possess land in a reserve through a Certificate of Possession issued by the band council: Indian Act , s. 20(1).
[ 144 ] Under s. 92 of the Constitution Act , 1867 , the provinces are given authority to make laws governing “property and civil rights”, among other things. The Family Law Act and the Partition Act fall under the province’s constitutional authority. However, in Derrickson v. Derrickson , [1986] 1 S.C.R. 285, at para. 46 , the Supreme Court of Canada held that provincial legislation cannot apply to the right of possession of Indian reserve lands. The court held, at para. 47:
When otherwise valid provincial legislation, given the generality of it terms, extends beyond the matter over which the legislature had jurisdiction and over a matter of exclusive federal jurisdiction, it must, in order to preserve its constitutionality, be read down and given the limited meaning which will confine it within the limits of the provincial jurisdiction.
[ 145 ] For that reason, the provisions relating to the possession, ownership, or disposition of property under the Family Law Act do not apply to land on a reserve like the property at issue in this case: Syrette v. Syrette , 2012 ONCA 693 , at para. 4 .
[ 146 ] As I will outline when I discuss the evidence of Ms. McLeod in the next section, the NFN derives the authority to enact the MRPL by valid delegation under the Indian Act . However, the NFN it still constrained by the provisions of the Indian Act . The NFN has no more power to legislate in contravention of the Indian Act than does the province. Consequently, the NFN cannot purport to give an interest in reserve land to a non-band member. Nor can this court.
[ 147 ] Ms. Klein relies on the decision in Syrette in support of the submission that a court can grant an interest in property on a reserve to a non-band member despite the provisions of the Indian Act . However, Syrette does not stand for that proposition. In Syrette , the Ontario Court of Appeal varied the trial judge's order to provide that “Each party has an equal interest in the matrimonial home…for equalization purposes.” However, in Syrette , both spouses were band members: Syrette v. Syrette , 2011 ONSC 6108 , at para. 7 . Neither the Court of Appeal nor the trial judge purported to create an interest in reserve land on behalf of a non-band member.
[ 148 ] I have not been provided with any other authority in support of the submission that the court can grant a beneficial interest in land on a reserve to a non-band member. Nor have I been able to find any such authority myself. In the absence of authority on such a major issue, I am not persuaded by either the text or context of the MRPL that it provides the court with the power to award and enforce a beneficial interest in NFN land to a non-band member.
[ 149 ] This brings me to the purpose of the MRPL.
Purpose
[ 150 ] During the summary judgment motion, I granted Mr. Kennedy leave to call Catherine McLeod as a witness. Ms. McLeod is the land manager at NFN. She began acting as the land manager in 1989 and was involved in that capacity as one of the architects of the MRPL. Ms. McLeod explained the history of the MRPL and the purpose behind it.
[ 151 ] As I noted earlier, provincial legislation relating to matrimonial homes does not apply to matrimonial homes on reserve land : Syrette , at para. 4. Instead, only the federal government has jurisdiction to legislate in that field.
[ 152 ] The main piece of federal legislation governing the interests of Indigenous people in matrimonial homes located on reserve land in Canada is the Family Homes on Reserves and Matrimonial Interests or Rights Act , S.C. 2013, c. 20, (“the FHRMIRA”). However, the FHRMIRA does not apply to homes on NFN land. To understand why, a little legislative history must be told.
[ 153 ] As Ms. McLeod explained, in 1996, parliament and 13 First Nations signed the “Framework Agreement on First Nation Land Management” (the “Framework Agreement”). NFN was one of the signatories to the Framework Agreement. The agreement was ratified by the First Nations Land Management Act , S.C. 1999, c. 24, passed in 1999. In 2022, the Framework Agreement on First Nation Land Management Act , S.C. 2022, c. 19, s. 121, came into force to repeal and replace the First Nations Land Management Act .
[ 154 ] Under the authority of the Framework Agreement, the NFN passed the Nipissing First Nation Land Code in 2003 and the law at issue in this case, the MRPL, in June 2007. Under s. 12 of the FHRMIRA , because the NFN land code and the MRPL were in existence at the time the FHRMIRA was given royal assent, the MRPL, and not the FHRMIRA, governs NFN land.
[ 155 ] Ms. McLeod testified that the MRPL was enacted to address perceived inequities between males and females and between Native and non-Native partners whose relationships had broken down. She testified that the intent of the MRPL was to allow the provisions of the Family Law Act to apply to NFN land, subject to the requirement that only NFN band members can own NFN land.
[ 156 ] When asked if she was aware of any case in which a non-NFN band member's interest in a home had been sold, Ms. McLeod said that she was not. However, she testified that there were other bands which had passed similar laws, and it might be that such a sale had occurred with respect to a non-band member's interest under those laws. I have not been provided with any case in which that has occurred.
[ 157 ] Although I do not have the benefit of any submissions on the issue, I am prepared to accept for the sake of this case that the band, in passing the MRPL, can adopt some or all of the provisions of the Family Law Act relating to matrimonial homes on NFN land by reference: Renvoi relatif à la loi concernant les enfants, les jeunes et les familles des Premières Nations, des Inuits et des Métis , 2024 SCC 5 , at paras. 122-125 . I also accept the evidence of Ms. McLeod that the intention of the drafters of the MRPL was to allow the provisions of the Family Law Act to apply to NFN land even though it would not otherwise apply. This extrinsic evidence of the purpose of the MRPL is supported by the provisions of the law itself: MRPL, s. 30.
[ 158 ] Under s. 10(c) of the Family Law Act , a court may determine the question of ownership or right to possession of a particular property and may order that the property be partitioned or sold for the purpose of realizing the interests in it. By virtue of the expanded definition of “spouse” in the MRPL, this would include non-married spouses, like Mr. Kennedy. However, while this may permit the court to determine the question of ownership or possession of a matrimonial home on NFN land, for the reasons I have expressed earlier, it cannot empower the court to grant a beneficial interest in NFN land to a non-band member. In my view, such an order would contravene the provisions of the Indian Act which restrict ownership of band land to band members.
Does the Partition Act permit the court to order the partition and sale of Mr. Kennedy's equitable interest in the home?
[ 159 ] I need not spend any time dealing with this submission. For the same reason that the Family Law Act provisions relating to the possession, ownership, or disposition of property does not apply to reserve land, the provisions of the Partition Act relating to the possession, ownership, or disposition of property also do not apply to reserve land.
[ 160 ] Once again, I have not been provided with any authority to the contrary.
The Appropriateness of a Monetary Order
[ 161 ] For all of the reasons I have discussed, I am not satisfied that a proprietary order can be made in which a non-band member is given a beneficial interest in band land. However, even if I am wrong in that belief, I would not be satisfied that anything other than a monetary order is necessary in this case.
[ 162 ] As I have repeatedly pointed out in my analysis, Mr. Kennedy knew all along that he could not be given an ownership interest in the Yellek Trail home, and yet he contributed to its construction and maintenance, nonetheless. I have found that he did so with the intention of living there rent-free for as long as he naturally could. That is why the extent to which Ms. Romain was unjustly enriched is limited, why Mr. Kennedy contribution was not gratuitous, and why a proprietary remedy would be inappropriate, even if it was possible.
[ 163 ] Mr. Kennedy argues that a monetary order is more-or-less useless to him. He contends that Ms. Romain is not properly maintaining the home and that she has no intention of selling it while he is alive. Although it was not mentioned by counsel on Mr. Kennedy’s behalf, I have also considered s. 89(1) of the Indian Act , which provides that the real (and personal) property of an “Indian or band situated on a reserve is not subject to charge, pledge, mortgage, attachment, levy, seizure, distress or execution in favour or at the instance of any person other than an Indian or a band.” Notwithstanding this section of the Indian Act and the submissions made on Mr. Kennedy's behalf, I am unable to agree that a monetary order is inappropriate in this case, even if I am wrong in concluding that it is the only order that can be made.
[ 164 ] In his affidavit sworn on September 6, 2023, in support of his motion for partial summary judgment, Mr. Kennedy deposed that the NFN office had advised him that a court order can be registered against the Yellek Trail home to secure his interest in the property. Although Mr. Kennedy also deposed that he was concerned that Ms. Romain had no plans on selling the property, he did not say that a sale to a band member could not be made to enforce a monetary judgment by way of execution, the same way it can against non-band property.
[ 165 ] In her testimony, Ms. McLeod said exactly that. She testified that a matrimonial home on NFN land can be sold to a band member to realize a non-band member's interest in the home. Thus, despite the provisions of s. 89 of the Indian Act , it seems possible to register a money judgment against Ms. Romain's interest in the home and to enforce that judgment, while still respecting the provisions of the Indian Act restricting ownership of band land to band members.
[ 166 ] For these reasons, I am not satisfied that a monetary award is insufficient.
What is the value of Mr. Kennedy's claim?
[ 167 ] Even when a monetary award is the most appropriate remedy for unjust enrichment, it should reflect the true nature of the enrichment and the corresponding deprivation: Kerr , at para. 78 .
[ 168 ] For reasons I have already expressed, I find that Mr. Kennedy's intention was to live in the house for as long as he could. Perhaps he also hoped that he would be repaid all or at least a large portion of his contribution to the building of the home. However, that is not the way things turned out. Instead, Mr. Kennedy lived in the home from the time the parties began to occupy it in September 2015 until he moved out in May 2020, a period of about 4.75 years. While I do not agree with Ms. Romain that this brief period of time should result in an award of nothing to Mr. Kennedy, I do agree that it must be considered. The question then becomes how to value the amount by which Ms. Romain was unjustly enriched and Mr. Kennedy correspondingly deprived.
[ 169 ] It seems to me that the best way to do that is to determine how long Mr. Kennedy might have lived in the home had the parties not separated, deduct from that period of time the amount of time he actually spent there, calculate the percentage of actual time spent to time Mr. Kennedy hoped to spend there, and multiply that percentage by the amount of Mr. Kennedy's contribution to the costs of building the home. I will start with how long Mr. Kennedy might have lived in the home had he not been forced by the separation to move out.
[ 170 ] A court may properly take judicial notice of facts that are either: (1) so notorious or generally accepted as not to be the subject of debate among reasonable persons; or (2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy: R. v. Find , 2001 SCC 32 , [2001] 1 S.C.R. 863, at para. 48 . This includes Statistics Canada information about the average life span of a Canadian male: see Davis v. Davis , 2022 NSSC 212 , at para. 207 .
[ 171 ] Based on Statistics Canada information available for 2015 (when the parties moved into the home), a 65-year old male had a further life expectancy of 19.3 years: Statistics Canada, Mortality: Overview, 2014 to 2016 . There is no data specifically for a 63-year old male. Therefore, I would add two years and round Mr. Kennedy's life expectancy in 2015 to 21 years, or 252 months. Mr. Kennedy resided in the home for 4 years and 8 months, or 56 months. This equals about 22 percent of his overall life expectancy. I would, therefore, multiply Mr. Kennedy's contribution of $57,382.03 by .78 (being the balance of his 21-year life expectancy at that time), to arrive at the sum of $44,747.98. This is the amount by which Ms. Romain was unjustly enriched, and Mr. Kennedy was correspondingly deprived. This is the value of his claim, in my view.
[ 172 ] Pre-judgment interest at the applicable rate should be paid on this sum from May 5, 2020, the date Mr. Kennedy left the home, to the date of judgment.
CONCLUSION
[ 173 ] For the foregoing reasons, an order will issue that Ms. Romain shall pay to Mr. Kennedy the sum of $44,747.98 as damages for unjust enrichment, together with pre-judgment interest at the rate set by statute from May 5, 2020, to the date of judgment. Given that Ms. Romain is self-represented, it will not be necessary to obtain her approval of a draft order. The order may be sent to me through Court Services for my approval.
[ 174 ] If the parties cannot agree on costs, written submissions, limited to five typewritten pages, exclusive of attachments, may be made as follows:
(1) on behalf of Mr. Kennedy, within 20 days of the date of these reasons; and
(2) on behalf of Ms. Romain, within 20 days after the receipt of Mr. Kennedy’s submissions.
M.G. Ellies J.
Released: February 06, 2026
COURT FILE NO.: FS-21-77
DATE: 2026/02/06
ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: SHERRI LYNN ROMAIN Applicant – and – WALTER KENNEDY Respondent REASONS FOR DECISION ON PARTITION APPLICATION M.G. Ellies
Released : February 06, 2026
[1] Although it is not material, I note that this evidence was somewhat inconsistent with a letter Ms. Romain appended to her October 2, 2023, affidavit, in which she wrote that the chip stand was purchased for $5,000 and sold for $17,000. However, the amount of profit, $12,000, would have been the same in either case.