“The party claiming that another party has been unjustly enriched must establish three elements (Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269, at paras. 36-37):
1) An enrichment;
2) A corresponding deprivation; and
3) The absence of a juristic reason for the enrichment.
To establish that Ms. Francis has been unjustly enriched by his contributions, Mr. Douglas must show that he gave something to Ms. Francis which she received and retained. The benefit must be tangible, have enriched Ms. Francis, and is capable of being restored to Mr. Douglas in specie or by money (Kerr, at para. 38).
There is a two-step process to determine the lack of a juristic reason for Ms. Francis’ retention of a benefit given to her by Mr. Douglas. The first step is a consideration of the established categories of juristic reasons to deny recovery, such as the terms of a contract, the intention to make a gift, or other equitable or statutory obligations. If there is no juristic reason from an established category, then Mr. Douglas has made out a prima face case under the first part of the test (Kerr, at para. 38).
The prima facie case established by an Applicant is rebuttable where the Respondent can show there is another reason to deny recovery. The burden of proof is therefore shifted to the Respondent to show the reason why the enrichment should be retained. The court shall look to all of the circumstances of the transaction when determining if there is a reason to deny recovery, including in particular the reasonable expectation of the parties, and public policy considerations (Kerr, at para. 38).
If Mr. Douglas establishes a claim for unjust enrichment, he may be entitled to either a monetary or proprietary award (Kerr, at para. 46). There are various ways to determine the value of a monetary award owed to an Applicant, including awarding the Applicant compensation for the monetary value received by the Respondent for unpaid services provided by the Applicant (Kerr, at para. 49).
Where the joint efforts of the parties are linked to the accumulation of wealth, there can be an unjust enrichment if one party is left with a disproportionate share of the jointly earned assets. In these circumstances, the unjust enrichment may be most realistically characterized as a “joint family venture” (Kerr, at para. 60).
Whether there was a joint family venture is a question of fact that may be assessed by considering all relevant circumstances between the parties, including mutual effort, economic integration, actual intent, and priority of family (Kerr, at para.100).
If a monetary award is inappropriate or insufficient, a proprietary award may be required where the Applicant can demonstrate a causal connection between his contributions and the acquisition, preservation, maintenance or improvement of the property. In this circumstance the Applicant can be granted a share of the property proportionate to the unjust enrichment as a constructive trust (Kerr, at para. 50).”