“An action for unjust enrichment arises when three elements are satisfied: (1) an enrichment, (2) a corresponding deprivation, and (3) the absence of a juristic reason for the enrichment: Peter v. Beblow, 1993 CanLII 126 (SCC), [1993] S.C.J. No. 36, 44 R.F.L. (3d) 329 (S.C.C.).
The common law of unjust enrichment should recognize and respond to the reality that there are unmarried domestic arrangements that are partnerships. The remedy in such cases should address the disproportionate retention of assets acquired through joint efforts with another person. This sort of sharing will not be presumed. Cohabitation does not, in itself, under the common law of unjust enrichment, entitle one party to a share of the other’s property or any other relief: Kerr v. Baranow, [2011] S.C.J. No. 10, 2011 SCC 10.
In Martin v. Sansome, 2014 ONCA 14, the Court of Appeal for Ontario summarized the Supreme Court of Canada’s decision in Kerr v. Baranow as follows:
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- The monetary remedy for unjust enrichment is not restricted to an award based on a fee-for-service approach.
- Where the unjust enrichment is most realistically characterized as one party retaining a disproportionate share of assets resulting from a joint family venture, and a monetary award is appropriate, it should be calculated on the basis of the share of those assets proportionate to the claimant’s contributions.
- To be entitled to a monetary remedy of this nature, the claimant must show both (a) that there was, in fact, a joint family venture, and (b) that there is a link between his or her contributions to it and the accumulation of assets and/or wealth.
- Whether there was a joint family venture is a question of fact and may be assessed by having regard to all the relevant circumstances, including factors relating to (a) mutual effort, (b) economic integration, (c) actual intent and (d) priority of the family.
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In this way, the framework established in Kerr requires the court to ask the following questions:
i) Have the elements of unjust enrichment-enrichment and a corresponding deprivation in the absence of a juristic reason-been made out?
ii) If so, will monetary damages suffice to address the unjust enrichment, keeping in mind bars to recovery and special ties to the property that cannot be remedied by money?
iii) If the answer to this second question is yes, should the monetary damages be quantified on a fee-for-service basis or a joint family venture basis? and,
iv) If, and only if monetary damages are insufficient, is there a sufficient nexus to a property that warrants impressing it with a constructive trust interest?
A spousal relationship is not a legal prerequisite to finding a joint family venture: Derakhshan v. Narula, 2019 ONCA 742.
The absence of a juristic reason for the enrichment in question is a necessary prerequisite to any finding of unjust enrichment: Chechui v. Nieman, 2017 ONCA 669.”