Common-law Spouses – Unjustly Enriched?

Let me describe what the Kerr v Baranow case means for common-law spouses.

Common-law spouses do not get property rights unless they make a claim, or are provided for adequately in an estate plan. Common-law spouses must sue their partners’ estate and make a claim for unjust enrichment.

What is Unjust Enrichment?

Here are 3 steps that a court must follow to find unjust enrichment:

Step1. You must show that you enriched your partner, either by your services or financial contributions. What the courts look for is that you have, through services, financial contributions or otherwise, enriched your partner.

For example, you could have:

• agreed to give up your career
• supported your partner in a business
• made cash contributions towards a down payment of a home
• provided domestic services
• handled child care needs

Step 2. You suffered a loss; it could be a loss of time or money by providing the enrichment.

Step 3. There is no legal reason for you to have enriched your partner. There was no contract or you did not intend to make a gift.

Once unjust enrichment is found, the remedy the courts frequently use is a constructive trust.

A constructive trust is an equitable remedy used when there is no legislated remedy. The courts will use it in cases where there's been unjust enrichment or fraud.

The Kerr v Baranow case of the Supreme Court of Canada can be found here.

Kerr v Baranow has a lengthy examination of the law of unjust enrichment. This will be discussed in more detail in future posts.

Register now and I will send you an email notifying you when a new post is made. In the coming weeks, I will be giving you tips on what the Kerr decision means if you are an estate executor or a common-law spouse doing any estate planning.