“The appropriate method of calculating the monetary remedy for an unjust enrichment claim must be determined. Quantification of a monetary remedy may be performed on either a value received, or value survived basis. Value received refers to the value that a person has received from the other person’s contributions, while value survived refers to the value that the other person has retained as a result of those contributions.
When the contributions of both parties over time have resulted in an accumulation of wealth and following the breakdown of the relationship one party retains a disproportionate share of the assets that are the product of their joint efforts, the relationship may be characterized as a “joint family venture”. As Cromwell J., noted in Kerr v. Baranow, at para. 7:
[7] …[W]here both parties have worked together for the common good, with each making extensive, but different, contributions to the welfare of the other and, as a result, have accumulated assets, the money remedy for unjust enrichment should reflect that reality.
For damages to be quantified on a joint family venture basis, a claimant must show two things: first, a joint family venture; and second, a link between the claimant’s contribution to the venture and the accumulation of assets or wealth: Farkas v. Bedic, 2016 ONCA 82 (CanLII), at para. 35, citing Kerr v. Baranow, at para. 87. This is not intended to be a line-by-line bookkeeping exercise. In Kerr v. Baranow, at para. 48, Justice Cromwell recognized the challenge associated with the parties and the court trying to “create, retroactively, a notional ledger to record and value every service rendered by each party to the other”. This applies equally to monetary contributions made over time.
At para. 81 of Kerr v. Baranow, Cromwell J., noted that:
[81]…The wealth created during the period of cohabitation will be treated as the fruit of their domestic and financial relationship, though not necessarily by the parties in equal measure. Since the spouses are domestic and financial partners, there is no need for “duelling quantum meruits”. In such cases, the unjust enrichment is understood to arise because the party who leaves the relationship with a disproportionate share of the wealth is denying to the claimant a reasonable share of the wealth accumulated in the course of the relationship through their joint efforts. The monetary award for unjust enrichment should be assessed by determining the proportionate contribution of the claimant to the accumulation of the wealth.”
To determine whether the parties have been engaged in a joint family venture, the circumstances of each relationship must be considered. The court is required to consider all relevant circumstances, including factors relating to mutual effort, economic integration, actual intent, and priority of the family. The court applies these factors to determine whether the parties formed a true partnership, working jointly towards important mutual goals: Farkas v. Bedic, at para. 36, citing Kerr v. Baranow, at para. 89.
Generally, when considering a remedy based on joint family venture, it is appropriate to look to all the family assets rather than just one of them to determine the value of a claimant’s contributions to the family venture: Kerr v. Baranow, at para. 68. Having said this, courts have considered the joint family venture concept with respect to one asset alone: Kamermans, at para. 55.
Overall, the remedy should match, as best as possible, the extent of the enrichment unjustly retained: Kerr v. Baranow, at para. 73.”