Susan G. Label

The Supreme Court of Canada heard two appeals concerning the property and financial rights of common law partners upon the breakdown of their relationships.

The Court held that the 'common intention' resulting trust has no further role in resolving domestic property disputes.

Instead, the law of unjust enrichment is the primary vehicle.

The Court clarified that a monetary remedy for unjust enrichment need not always be calculated on a quantum meruit (fee-for-services) basis.

Where the parties were engaged in a 'joint family venture' and there is a link between the claimant's contributions and the accumulation of wealth, the remedy should be calculated based on the share of the accumulated wealth proportionate to the claimant's contributions.

In Vanasse, the Court restored the trial judge's award based on wealth accumulation.

In Kerr, the Court ordered a new trial for the unjust enrichment claims and restored the trial judge's order for spousal support effective from the date proceedings commenced.

The parties separated after 12 years of marriage.

At trial, family assets were divided equally, and the trial judge ordered that the husband's contingent tax liabilities associated with his tax shelters should be shared equally by the spouses on an 'if and when' basis.

The Court of Appeal set aside this order, holding that the Family Relations Act precluded a freestanding order apportioning debt.

The Supreme Court of Canada allowed the appeal, holding that the Act does not preclude an order dividing a contingent liability that cannot be valued at the time of trial, and that fairness required both spouses to assume responsibility for the contingent liabilities associated with tax shelters from which they both benefited.