Common Law Spouses and Property Rights
As was evidenced in the case of Canadian Charter of Rights and Freedoms in Nova Scotia (AG) v. Walsh, common law spouses, unlike married ones, do not have statutory property rights. Thus, when a common law spouse claims a right in property against his/her former partner, the case to be made is one of constructive and/or resulting trust.
When making a claim based on resulting/constructive trust, the imperative principles to prove are as follows:
- The defendant was enriched;
- The plaintiff has suffered some sort of deprivation; and,
- There is no juristic reason for the enrichment.
In sum, the court will look to reimburse the unjust enrichment.
The case of Kerr v. Baranow posited that where a common law spouse makes a property claim based on constructive/resulting trust, the court is not restricted in its decision to award a portion of the property to the claimant. As is most commonly awarded today, courts can award the claimant monetary compensation for their share in the property.
The Supreme Court of Canada in Kerr v. Baranow explained that if a monetary award is to be handed over to the claimant, then the economic approach would be one of “value surviving.” This would essentially prove just if the claimant put money into a house that dropped in value over the course of the relationship. The “value surviving” approach would ultimately pay the claimant the proportion of what was put into the house and the house’s worth.
To learn more about common law spouses as well as the services provided by Krol & Krol, call 905.707.3370 today.
