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Common-law partners do not have the same property rights as married spouses under Ontario’s Family Law Act. Our trial lawyers pursue property claims through constructive trust, resulting trust, and unjust enrichment, applying the Supreme Court of Canada’s framework from Kerr v. Baranow.
Book My 15-Minute Assessment →Kerr v. Baranow Framework | Constructive Trust Claims | Resulting Trust | Unjust Enrichment
Common-law partners do not have the same property rights as married spouses. The property equalization regime under Part I of the Family Law Act applies only to legally married spouses. Common-law partners must rely on equitable remedies such as unjust enrichment and constructive trust to claim a share of property accumulated during the relationship. These claims require proof of contribution and are typically resolved at trial.
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In Ontario, the property equalization regime under Part I of the Family Law Act, R.S.O. 1990, c. F.3, applies only to legally married spouses. Common-law partners, regardless of the length of their relationship, have no statutory right to an equalization of net family properties. This means that when a common-law relationship ends, each partner retains ownership of the property registered in their name. A partner who contributed financially or through labour to the acquisition, preservation, or improvement of property held by the other partner has no automatic claim to share in that property’s value.
To recover their fair share, common-law partners must rely on equitable remedies developed through the common law. The principal claims are unjust enrichment, constructive trust, and resulting trust. These claims are fact-intensive and require extensive evidence of financial contributions, labour, and the parties’ mutual expectations. They are also procedurally complex, typically requiring trial. At Lexaltico LLP, our family law trial lawyers have deep experience prosecuting and defending common-law property claims in the Ontario Superior Court of Justice.
The Supreme Court of Canada’s decision in Kerr v. Baranow, 2011 SCC 10, fundamentally reshaped the law of unjust enrichment in the context of domestic partnerships. To establish unjust enrichment, the claimant must prove three elements: (1) an enrichment of the defendant, (2) a corresponding deprivation of the claimant, and (3) the absence of a juristic reason for the enrichment, such as a contract, a disposition of law, a donative intent, or other valid reasons. If unjust enrichment is established, the court must determine the appropriate remedy, either a monetary award or a proprietary remedy in the form of a constructive trust.
Kerr v. Baranow introduced the "joint family venture" concept for quantifying the monetary remedy. Where the parties have been engaged in a joint family venture, a mutual effort directed at common goals, the court considers the mutual effort of the parties, the economic integration of their finances, the actual intent of the parties, and the priority of the family in their decision-making. The monetary award is then calculated based on the claimant’s proportionate contribution to the accumulation of wealth during the relationship. This approach replaced the earlier "value survived" / "value received" dichotomy with a more flexible framework.
While common-law partners are excluded from the property equalization regime, they do have rights to spousal support and child-related relief. Under FLA s.29, a common-law partner may claim spousal support if the parties cohabited continuously for at least three years, or if they are in a relationship of some permanence and are the parents of a child. The Spousal Support Advisory Guidelines (SSAG) apply equally to common-law and married partners once entitlement is established. Child custody and access rights under the Children’s Law Reform Act are similarly available regardless of marital status.
The intersection of property claims, support claims, and custody issues in common-law separations creates a complex litigation landscape. Limitation periods are critical: unjust enrichment claims are subject to the two-year limitation period under the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, running from the date the claim is discovered. Delay in commencing proceedings can be fatal to a property claim. At Lexaltico LLP, 55 University Avenue, Toronto, we advise common-law partners promptly on their rights and commence proceedings within the applicable limitation periods. Our trial lawyers are prepared to take common-law property disputes through to a full hearing and judgment.
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55 University Ave, Suite 1100
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Lexaltico LLP
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