In Monday’s blog I wrote about property division between married spouses at the breakdown of their relationship, as governed by Part I of the Ontario Family Law Act. Unfortunately, this part of the act doesn’t apply to cohabiting spouses. therefore, property division between unmarried spouses is generally done through alternative dispute resolutions (ADR).

At the same time, it’s not entirely hopeless for unmarried spouses. There are remedies at common law for a spouse who feels that he or she is entitled to share the properties accumulated during the relationship. While there are various ways in which the courts may declare that the plaintiff spouse is entitled to properties of the other, the most common approaches are based on the principle of trust law, particularly through the doctrine of constructive trust.

The Supreme Court of Canada has explained that the concept of constructive trust is based on the doctrine of unjust enrichment. The court ruled in Pettkus v. Becker *that there are three requirements before a plaintiff can establish constructive trust: (1) an enrichment, (2) a corresponding deprivation, and (3) the absence of juristic reason for the enrichment.

In this case Pettkus had benefited from 19 years of unpaid labour while Becker received little or nothing in return.

The court found that there was no reasonable expectation that Becker was providing the labour on a gratuitous basis. Hence, the court found that Pettkus was unjustly enriched by Becker’s contribution and it would be unfair to allow Pettkus to retain the benefts.

However, because the doctrine of constructive trust lacks a legislative frame work, the plaintiffs often find it burdensome to establish the claim. As such, costs often become a great concern. A viable option may lie in ADR methods, such as mediation and/or arbitration.

*[1980] 2 S.C.R. 834