“Unlike the FLA, which presumes that couples are entitled to an equal share of net family property accumulated during marriage, there is no presumption that a finding of unjust enrichment entitles a claimant to a half interest in the property. The extent of the claimant’s interest must be proportionate to their contributions: Kerr, at para. 102. When the contributions are unequal, the shares should be unequal: Kerr, at paras. 84-85.”
Month: June 2022
June 1, 2022 – Statute of Frauds
“The Statute of Frauds generally requires that contracts creating interest in land or for the sale of land be in writing. The fact that a contract does not comply with the Statute of Frauds because it is not in writing does not render the contract void, but it renders it unenforceable in certain circumstances.
Section 4 of the Statute of Frauds provides that no action can be brought to enforce an oral agreement regarding the sale of land or an interest in land.
The purpose of section 4 is to prevent fraudulent dealings in land based upon perjured evidence.
Equity, however, will not allow the Statute of Frauds to be used as an “engine of fraud.”
There is a remedy in equity or by way of equitable doctrine that allows the Court to rely on an oral agreement, when the Statute of Frauds would otherwise preclude such reliance. The equitable doctrine is the doctrine of part performance.
The equitable doctrine of part performance is to prevent the Statute of Frauds from being used as a variant of the unconscionable dealing it was designed to remedy. See Hill v Nova Scotia (Attorney General) 1997 CanLII 401 (SCC), [1997] 1 SCR 69 at paragraph 10 (“Hill”).
The requirements of s. 4 must give way in the face of part performance because the acts of part performance fulfill the very purpose of the written document that is, they diminish the opportunity for fraudulent dealings with land based upon perjured evidence.
In Hill at paragraph 9 the court stated:
.. . where the terms of an agreement have already been carried out the danger of fraud is averted or at least greatly reduced.
As Corey J. stated in Hill:
. . . equity recognizes as done that which ought to be done. . . and a verbal agreement which has been partly performed will be enforced.
This doctrine is engaged, when one party relies to his or her detriment on the oral promise of the other party and partly performs his or her obligation under the contract while the other party “stands by it.” It is inequitable for the other party to rely on the Statute of Frauds to excuse his or her non-performance of the oral contract. The doctrine of part performance has been held to exclude the operation of s. 4 of the Statute of Frauds. See Erie (supra).
The doctrine requires the acts said to evidence the part performance must unequivocally refer to and support the alleged agreement and be amenable to no other interpretation. An objective reasonable bystander would conclude in all of the circumstances that the parties had intended to contract.
In Erie, the ONCA considered the following questions:
Did the parties’ discussions amount to an agreement?
If the answer is yes, were there sufficient acts of part performance to take the agreement outside the requirements of s. 4 of the Statute of Frauds?
If so, should specific performance be ordered? Or, was it properly ordered at the trial level?”