Kerr v. Baranow, (2011) 274 O.A.C. 1 (SCC)

JudgeMcLachlin, C.J.C., Binnie, LeBel, Abella, Charron, Rothstein and Cromwell, JJ.
CourtSupreme Court (Canada)
Case DateApril 21, 2010
JurisdictionCanada (Federal)
Citations(2011), 274 O.A.C. 1 (SCC);2011 SCC 10;411 NR 200;[2011] 1 SCR 269;64 ETR (3d) 1;274 OAC 1;EYB 2011-186472;[2011] EXP 624;300 BCAC 1;[2011] SCJ No 10 (QL);14 BCLR (5th) 203;93 RFL (6th) 1;[2011] 3 WWR 575;328 DLR (4th) 577;JE 2011-333;[2011] ACS no 10;[2011] CarswellBC 240

Kerr v. Baranow (2011), 274 O.A.C. 1 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2011] O.A.C. TBEd. FE.067

Margaret Patricia Kerr (appellant) v. Nelson Dennis Baranow (respondent)

Michele Vanasse (appellant) v. David Seguin (respondent)

(33157; 33358; 2011 SCC 10; 2011 CSC 10)

Indexed As: Kerr v. Baranow

Supreme Court of Canada

McLachlin, C.J.C., Binnie, LeBel, Abella, Charron, Rothstein and Cromwell, JJ.

February 18, 2011.

Summary:

These two appeals, argued consecutively, addressed the property consequences of the breakdown of common law relationships.

In the Kerr appeal, Ms. Kerr and Mr. Baranow, a couple in their late-sixties, separated after a common law relationship of more than 25 years. Both had worked through much of that time and each had contributed in various ways to their mutual welfare. Kerr claimed support and a share of property held in Baranow's name based on resulting trust and unjust enrichment principles.

The British Columbia Supreme Court, in a decision reported at [2007] B.C.T.C. Uned. H10, awarded Kerr one-third of the value of the couple's residence, grounded in both resulting trust and unjust enrichment claims. The trial judge did not address, other than in passing, Baranow's counterclaim that Kerr had been unjustly enriched. The judge also ordered substantial monthly spousal support for Kerr, effective as of the date she applied for relief. Baranow appealed.

The British Columbia Court of Appeal, in a decision reported at (2009), 266 B.C.A.C. 298; 449 W.A.C. 298, set aside the resulting trust and unjust enrichment conclusions. The court dismissed the appeal from the quantum and duration of the spousal support award, but ordered that support commence as of the date the trial began. Kerr appealed.

The Supreme Court of Canada allowed the Kerr appeal in part. Specifically, the court (a) allowed the appeal on the spousal support issue and restored the order of the trial judge with respect to support; (b) allowed the appeal with respect to the Court of Appeal's decision to dismiss Kerr's unjust enrichment claim and ordered a new trial of that claim; and (c) dismissed the appeal in relation to Kerr's claim of resulting trust and the ordering of a new hearing of Baranow's counterclaim, and affirmed the order of the Court of Appeal in relation to those issues.

In the Vanasse appeal, Ms. Vanasse and Mr. Seguin lived in a common law relationship for about 12 years and had two children. The central issue was how to quantify a monetary award for unjust enrichment. It was agreed that Seguin was unjustly enriched by the contributions of Vanasse.

The Ontario Superior Court, in a decision reported at [2008] O.T.C. Uned. E92, valued the extent of the enrichment by determining what proportion of Seguin's increased wealth was due to Vanasse's efforts as an equal contributor to the family venture. Seguin appealed the award.

The Ontario Court of Appeal, in a decision reported at (2009), 252 O.A.C. 218, ordered a new trial on the issue. The court directed that the proper approach to valuation was to place a monetary value on the services provided by Vanasse to the family, taking due account of Seguin's own contributions by way of set-off; in short, that Vanasse should be treated as an unpaid employee, not a co-venturer. Vanasse appealed.

The Supreme Court of Canada allowed the Vanasse appeal, set aside the order of the Court of Appeal, and restored the order of the trial judge.

Family Law - Topic 688

Husband and wife - Property rights during and after common law marriage or relationship - Resulting or constructive trusts - A main issue in these appeals concerned the role of the "common intention" resulting trust in claims by domestic partners - The Supreme Court of Canada stated that "it is time to recognize that the 'common intention' approach to resulting trust has no further role to play in the resolution of property claims by domestic partners on the breakdown of their relationship" - See paragraph 6.

Family Law - Topic 688

Husband and wife - Property rights during and after common law marriage or relationship - Resulting or constructive trusts - The Supreme Court of Canada addressed the law of resulting trusts as it applied to the breakdown of a marriage-like relationship - "The resulting trust jurisprudence in domestic property cases developed into what has been called 'a purely Canadian invention', the 'common intention' resulting trust ... While this vehicle has largely been eclipsed by the law of unjust enrichment since the decision of the Court in Pettkus v. Becker [1980] ..., claims based on the 'common intention' resulting trust continue to be advanced ... In this Court, since Pettkus, the common intention resulting trust remains intact but unused. While traditional resulting trust principles may well have a role to play in the resolution of property disputes between unmarried domestic partners, the time has come to acknowledge that there is no continuing role for the common intention resulting trust" - See paragraphs 13 to 15.

Family Law - Topic 688

Husband and wife - Property rights during and after common law marriage or relationship - Resulting or constructive trusts - The Supreme Court of Canada stated that the common intention resulting trust had no further role to play in the resolution of domestic cases, for the following four reasons - "First, as the abundant scholarly criticism demonstrates, the common intention resulting trust is doctrinally unsound ... A second difficulty with the common intention resulting trust is that the notion of common intention may be highly artificial, particularly in domestic cases ... Third, the 'common intention' resulting trust in Canada evolved from a misreading of some imprecise language in early authorities from the House of Lords. ... Finally, ... the principles of unjust enrichment, coupled with the possible remedy of a constructive trust, provide a much less artificial, more comprehensive and more principled basis to address the wide variety of circumstances that lead to claims arising out of domestic partnerships. There is no need for any artificial inquiry into common intent" - See paragraphs 24 to 29.

Family Law - Topic 688

Husband and wife - Property rights during and after common law marriage or relationship - Resulting or constructive trusts - [See thirteenth Family Law - Topic 1008 ].

Family Law - Topic 692

Husband and wife - Property rights during and after common law marriage or relationship - Quantum meruit claim for contributions - [See first and twelfth Family Law - Topic 1008 ].

Family Law - Topic 692

Husband and wife - Property rights during and after common law marriage or relationship - Quantum meruit claim for contributions - The Supreme Court of Canada described the genesis of the purported limitation on the monetary remedy for an unjust enrichment, then explained why it should be rejected - "In my view, restricting the money remedy to a fee-for-services calculation is inappropriate for four reasons. First, it fails to reflect the reality of the lives of many domestic partners. Second, it is inconsistent with the inherent flexibility of unjust enrichment. Third, it ignores the historical basis of quantum meruit claims. Finally, it is not mandated by the Court's judgment in Peter [v. Beblow (1993)]" - See paragraphs 56 to 58.

Family Law - Topic 692

Husband and wife - Property rights during and after common law marriage or relationship - Quantum meruit claim for contributions - The Supreme Court of Canada rejected a strict remedial dichotomy between quantum meruit and constructive trust as inconsistent with the historical development of the unjust enrichment principle - The important point was that "quantum meruit is simply one of the established categories of unjust enrichment claims. There is no reason in principle why one of the traditional categories of unjust enrichment should be used to force the monetary remedy for all present domestic unjust enrichment cases into a remedial straitjacket" - See paragraph 74.

Family Law - Topic 1006

Common law, same-sex or adult interdependent relationships - Resulting or constructive trusts - [See first, second and third Family Law - Topic 688 and thirteenth Family Law - Topic 1008 ].

Family Law - Topic 1008

Common law, same-sex or adult interdependent relationships - Monetary awards - An issue in these appeals concerned the nature of the money remedy for a successful unjust enrichment claim - The Supreme Court of Canada stated that "[s]ome courts take the view that if the claimant's contribution cannot be linked to specific property, a money remedy must always be assessed on a fee-for-services basis. Other courts have taken a more flexible approach. In my view, where 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. The money remedy in those circumstances should not be based on a minute totting up of the give and take of daily domestic life, but rather should treat the claimant as a co-venturer, not as the hired help" - See paragraph 7.

Family Law - Topic 1008

Common law, same-sex or adult interdependent relationships - Monetary awards - An issue in these appeals concerned the nature of the money remedy for a successful unjust enrichment claim - The Supreme Court of Canada stated that "[m]any domestic relationships involve the mutual conferral of benefits, in the sense that each contributes in various ways to the welfare of the other. The question is how and at what point in the unjust enrichment analysis should this mutual conferral of benefits be taken into account?" - In the end result, the court concluded that "this issue should, with a small exception, be addressed at the defence and remedy stage" - See paragraph 8.

Family Law - Topic 1008

Common law, same-sex or adult interdependent relationships - Monetary awards - An issue in these appeals concerned the nature of the money remedy for a successful unjust enrichment claim - The Supreme Court of Canada stated that the parties' reasonable or legitimate expectations had a limited role in the unjust enrichment analysis, "and must be considered in relation to whether there is a juristic reason for the enrichment" - See paragraph 9.

Family Law - Topic 1008

Common law, same-sex or adult interdependent relationships - Monetary awards - An issue in these appeals concerned the nature of the money remedy for a successful unjust enrichment claim - The Supreme Court of Canada reviewed the current state of the law with respect to the elements of an unjust enrichment claim and noted the particular issues that arose in claims by domestic partners - See paragraphs 30 to 49.

Family Law - Topic 1008

Common law, same-sex or adult interdependent relationships - Monetary awards - An issue in these appeals concerned the nature of the money remedy for a successful unjust enrichment claim - The Supreme Court of Canada stated that "[w]hile the law of unjust enrichment sets out a sturdy legal framework within which to address claims by domestic partners, three areas continue to generate controversy and require clarification. ... [T]hese are as follows: the approach to the assessment of a monetary award for a successful unjust enrichment claim, how and where to address the mutual benefit problem, and the role of the parties' reasonable or legitimate expectations" - The court addressed those areas in turn - See paragraph 54.

Family Law - Topic 1008

Common law, same-sex or adult interdependent relationships - Monetary awards - An issue in these appeals concerned the nature of the money remedy for a successful unjust enrichment claim - The Supreme Court of Canada set out its views on how money remedies for unjust enrichment claims in domestic situations should be approached - "The next step in the legal development of this area should be to move away from the false remedial dichotomy between quantum meruit and constructive trust, and to return to the underlying principles governing the law of unjust enrichment. These underlying principles focus on properly characterizing the nature of the unjust enrichment giving rise to the claim. ... Where the unjust enrichment is best characterized as an unjust retention of a disproportionate share of assets accumulated during the course of ... a 'joint family venture' to which both partners have contributed, the monetary remedy should reflect that fact. ... 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" - See paragraphs 80 and 81.

Family Law - Topic 1008

Common law, same-sex or adult interdependent relationships - Monetary awards - The Supreme Court of Canada addressed the law of unjust enrichment in the context of the breakdown of a marriage-like relationship - In discussing the approach to the monetary remedy, the court concluded that "the common law of unjust enrichment should recognize and respond to the reality that there are unmarried domestic arrangements that are partnerships; the remedy in such cases should address the disproportionate retention of assets acquired through joint efforts with another person. This sort of sharing, of course, should not be presumed, nor will it be presumed that wealth acquired by mutual effort will be shared equally. Cohabitation does not, in itself, under the common law of unjust enrichment, entitle one party to a share of the other's property or any other relief. However, where wealth is accumulated as a result of joint effort, as evidenced by the nature of the parties' relationship and their dealings with each other, the law of unjust enrichment should reflect that reality" - See paragraph 85.

Family Law - Topic 1008

Common law, same-sex or adult interdependent relationships - Monetary awards - The Supreme Court of Canada set out its views on how money remedies for unjust enrichment claims in domestic situations should be approached - The court's rejection of the "false remedial dichotomy" between quantum meruit and constructive trust led it to consider in what circumstances an unjust enrichment might be appropriately characterized as a failure to share equitably assets acquired through the parties' joint efforts - The court offered a broad outline of when that characterization of an unjust enrichment would be appropriate - "It is critical to note that cohabiting couples are not a homogeneous group ... A joint family venture can only be identified by the court when its existence, in fact, is well-grounded in the evidence ... In undertaking this analysis, it may be helpful to consider the evidence under four main headings: mutual effort, economic integration, actual intent and priority of the family" - See paragraphs 87 to 99.

Family Law - Topic 1008

Common law, same-sex or adult interdependent relationships - Monetary awards - The Supreme Court of Canada set out its views on how money remedies for unjust enrichment claims in domestic situations should be approached - The court concluded that "1. The monetary remedy for unjust enrichment is not restricted to an award based on a fee-for-services approach. 2. Where the unjust enrichment is most realistically characterized as one party retaining a disproportionate share of assets resulting from a joint family venture, and a monetary award is appropriate, it should be calculated on the basis of the share of those assets proportionate to the claimant's contributions. 3. To be entitled to a monetary remedy of this nature, the claimant must show both (a) that there was, in fact, a joint family venture, and (b) that there is a link between his or her contributions to it and the accumulation of assets and/or wealth. 4. Whether there was a joint family venture is a question of fact and may be assessed by having regard to all of the relevant circumstances, including factors relating to (a) mutual effort, (b) economic integration, (c) actual intent and (d) priority of the family" - See paragraph 100.

Family Law - Topic 1008

Common law, same-sex or adult interdependent relationships - Monetary awards - The Supreme Court of Canada stated that "the unjust enrichment analysis in domestic situations is often complicated by the fact that there has been a mutual conferral of benefits ... Of course, a claimant cannot expect both to get back something given to the defendant and retain something received from him or her ... The unjust enrichment analysis must take account of this common sense proposition" - The court considered how and where in the unjust enrichment analysis the mutual conferral of benefits should be done, and concluded that "mutual benefits may be considered at the juristic reason stage, but only to the extent that they provide evidence relevant to the parties' reasonable expectations. Otherwise, mutual benefit conferrals are to be considered at the defence and/or remedy stage" - See paragraphs 101 to 116.

Family Law - Topic 1008

Common law, same-sex or adult interdependent relationships - Monetary awards - The Supreme Court of Canada clarified that "while in the early domestic unjust enrichment cases the parties' reasonable expectations played an important role in the juristic reason analysis, the development of the law ... has led to a more limited and clearly circumscribed role for those expectations" - The court summarized its conclusions: "1. The parties' reasonable or legitimate expectations have little role to play in deciding whether the services were provided for a juristic reason within the existing categories. 2. In some cases, the facts that mutual benefits were conferred or that the benefits were provided pursuant to the parties' reasonable expectations may be relevant evidence of whether one of the existing categories of juristic reasons is present ... However, generally the existence of mutual benefits flowing from the defendant to the claimant will not be considered at the juristic reason stage of the analysis. 3. The parties' reasonable or legitimate expectations have a role to play at the second step of the juristic reason analysis, that is, where the defendant bears the burden of establishing that there is a juristic reason for retaining the benefit which does not fall within the existing categories. It is the mutual or legitimate expectations of both parties that must be considered ... The question is whether the parties' expectations show that retention of the benefits is just" - See paragraphs 117 to 124.

Family Law - Topic 1008

Common law, same-sex or adult interdependent relationships - Monetary awards - The parties (Ms. Vanasse and Mr. Seguin) lived together in a common law relationship for about 12 years and had two children - The parties separated in 2005 - Vanasse's net worth had gone from about $40,000 at the time she and Seguin started living together, to about $332,000 at the time of separation; Seguin had come into the relationship with about $94,000, and his net worth at the time of separation was about $8,450,000 - Vanasse claimed unjust enrichment - The trial judge awarded Vanasse a share of the net increase in the family's wealth during the period of unjust enrichment (from March 1997 to September 2000, during which both children were born and Seguin's business was sold) - The order was reversed on appeal - The Supreme Court of Canada restored the trial judgment, agreeing with Vanasse that "a monetary award for unjust enrichment need not, as a matter of principle, always be calculated on a fee-for-services basis" - There was a joint family venture and there was a link between Vanasse's contribution to it and the family's accumulation of wealth - The trial judge made a reasonable assessment of the monetary award appropriate to reverse the unjust enrichment - The unjust enrichment of Seguin at the expense of Vanasse ought to be characterized as the retention by Seguin of a disproportionate share of the wealth generated from a joint family venture - Several factors suggested that the parties worked collaboratively towards common goals and considered their relationship to be a joint family venture - Notably, the period of unjust enrichment corresponded to the time during which the parties had two children - The length of the relationship was also relevant - There was also evidence of economic integration - There was a strong inference that, to Seguin's knowledge, Vanasse relied on the relationship to her detriment - There was a clear link between Vanasse's contribution and the accumulation of wealth - See paragraphs 142 to 161.

Family Law - Topic 1008

Common law, same-sex or adult interdependent relationships - Monetary awards - When their common law relationship of more than 25 years ended, Kerr sued her former partner, Baranow, advancing claims for, inter alia, unjust enrichment and resulting trust - Baranow counterclaimed that Kerr had been unjustly enriched by his housekeeping services - The trial judge awarded Kerr $315,000, both by way of resulting trust and by way of remedial constructive trust - The trial judge rejected Baranow's assertion that Kerr had been unjustly enriched at his expense, but did not otherwise address Baranow's counterclaim - Baranow's appeal was allowed - Kerr's claims for a resulting trust and in unjust enrichment were dismissed and Baranow's claim for unjust enrichment was remitted to the trial court for determination - Kerr appealed - The Supreme Court of Canada, on the issue of offsetting enrichments, did not accept the conclusions of either the trial judge or the appeal court - The trial judge, in his determination of the extent of Kerr's unjust enrichment, largely ignored Baranow's contributions - However, the appeal court erred in assessing Baranow's contributions as part of the juristic reason analysis; "this analysis prematurely truncated Ms. Kerr's prima facie case of unjust enrichment" - In the end result, the court ordered a new trial of both Kerr's unjust enrichment claim and Baranow's counterclaim, on the principles set out in the court's "clarified template" - See paragraph 193.

Family Law - Topic 1008

Common law, same-sex or adult interdependent relationships - Monetary awards - When their common law relationship of more than 25 years ended, Kerr sued her former partner, Baranow, advancing claims for, inter alia, unjust enrichment and resulting trust - Baranow counterclaimed that Kerr had been unjustly enriched by his housekeeping services - The trial judge awarded Kerr $315,000, both by way of resulting trust (to reflect her contribution to the acquisition of property) and by way of remedial constructive trust (as a remedy for her successful claim in unjust enrichment) - The trial judge rejected Baranow's assertion that Kerr had been unjustly enriched at his expense, but did not otherwise address Baranow's counterclaim - Baranow's appeal was allowed - Kerr's claims for a resulting trust and in unjust enrichment were dismissed and Baranow's claim for unjust enrichment was remitted to the trial court for determination - Kerr appealed - The Supreme Court of Canada rejected Kerr's point that her claim should be assessed using a "family property approach" - "[F]or Ms. Kerr to show an entitlement to a proportionate share of the wealth accumulated during the relationship, she must establish that Mr. Baranow has been unjustly enriched at her expense, that their relationship constituted a joint family venture, and that her contributions are linked to the generation of wealth during the relationship. She would then have to show what proportion of the jointly accumulated wealth reflects her contributions. Of course, this clarified template was not available to the trial judge or to the Court of Appeal. However, these requirements are quite different than those advanced by the appellant and accordingly her 'family property approach' must be rejected" - In the end result, the court ordered a new trial of Kerr's unjust enrichment claim - See paragraph 194.

Family Law - Topic 1008

Common law, same-sex or adult interdependent relationships - Monetary awards - When their common law relationship of more than 25 years ended, Kerr sued her former partner, Baranow, advancing claims for, inter alia, unjust enrichment and resulting trust - Baranow counterclaimed that Kerr had been unjustly enriched - The trial judge awarded Kerr $315,000, both by way of resulting trust and by way of remedial constructive trust - The trial judge rejected Baranow's assertion that Kerr had been unjustly enriched, but did not otherwise address Baranow's counterclaim - Baranow's appeal was allowed - Kerr's claims for a resulting trust and in unjust enrichment were dismissed and Baranow's claim for unjust enrichment was remitted to the trial court for determination - Kerr appealed - The Supreme Court of Canada held that Kerr's unjust enrichment claim should not have been dismissed, but rather a new trial ordered - The first consideration in support of a new trial was that the order that Baranow's counterclaim be heard and decided was "unimpeachable" - Trying the counterclaim separated from Kerr's claim would be "an artificial and potentially unfair way of proceeding" - More fundamentally, it was not possible to say on the record, which included findings of fact tainted by clear error, that Kerr's unjust enrichment claim would inevitably fail if analyzed using the joint family venture analysis set out by the court - "While the findings made do not appear to demonstrate a joint family venture or a concomitant link to accumulated wealth, it would be unfair to reach that conclusion without giving an opportunity to the parties to present their evidence and arguments" - See paragraphs 195 to 199.

Family Law - Topic 1009

Common law, same-sex or adult interdependent relationships - Joint family venture - [See eighth Family Law - Topic 1008 ].

Family Law - Topic 1013

Common law, same-sex or adult interdependent relationships - Maintenance - When their common law relationship of more than 25 years ended, Kerr sued her former partner, advancing claims for, inter alia, spousal support - Section 93(5)(d) of the British Columbia Family Relations Act provided for a spousal support order in respect of "any period before the order is made" - The trial judge awarded Kerr spousal support effective the date she commenced proceedings, rather than on the first day of trial - The appeal court held that spousal support was effective as of the first day of the trial - The Supreme Court of Canada held that the Court of Appeal made two main errors - First, it erred in principle in setting aside the judge's order on the ground that Kerr had no need during the period between the commencement of proceedings and the date of trial, while upholding the judge's findings of need in circumstances that were no different from those existing at the time proceedings were commenced - Second, the Court of Appeal was wrong to fault Kerr for not bringing an interim application - Kerr commenced her proceedings promptly after separation and the trial occurred only about thirteen months afterward - The position taken by the Court of Appeal "undermines the incentives which should exist on parties to seek financial disclosure, pursue their claims with due diligence, and keep interlocutory proceedings to a minimum" - See paragraphs 214 to 219.

Family Law - Topic 2201

Maintenance of wives and children - General principles - Rights of children - The Supreme Court of Canada mentioned some of the different legal principles and objectives that underpinned spousal as compared with child support - "Spousal support has a different legal foundation than child support. A parent-child relationship is a fiduciary relationship of presumed dependency and the obligation of both parents to support the child arises at birth. It that sense, the entitlement to child support is 'automatic' ... Child support is the right of the child, ... and the basic amount of child support ... now depends on the income of the payor ... These aspects of child support reduce somewhat the strength of concerns about lack of notice and lack of diligence in seeking child support. ... In contrast, there is no presumptive entitlement to spousal support and, unlike child support, the spouse is in general not under any legal obligation to look out for the separated spouse's legal interests. Thus, concerns about notice, delay and misconduct generally carry more weight in relation to claims for spousal support" - See paragraph 208.

Family Law - Topic 2211

Maintenance of wives and children - General principles - Retrospective or retroactive orders - [See Family Law - Topic 1013 ].

Family Law - Topic 2211

Maintenance of wives and children - General principles - Retrospective or retroactive orders - The Supreme Court of Canada considered the relevant factors that came into play where support was sought in relation to a period predating a spousal support order - "[S]imilar considerations to those set out in the context of child support are also relevant to deciding the suitability of a 'retroactive' award of spousal support. Specifically, these factors are the needs of the recipient, the conduct of the payor, the reason for the delay in seeking support and any hardship the retroactive award may occasion on the payor spouse. However, in spousal support cases, these factors must be considered and weighed in light of the different legal principles and objectives that underpin spousal as compared with child support" - See paragraphs 206 and 207.

Family Law - Topic 2321

Maintenance of wives and children - Maintenance of wives - General - [See Family Law - Topic 2201 ].

Restitution - Topic 62

Unjust enrichment - What constitutes - [See fourth Family Law - Topic 1008 ].

Restitution - Topic 123

Unjust enrichment - Remedies - Constructive trust - [See third Family Law - Topic 688 ].

Trusts - Topic 2006

Resulting trusts - Joint undertakings - By husband and wife - [See sixth, seventh, eighth, ninth and twelfth Family Law - Topic 1008 ].

Trusts - Topic 2346

Constructive trusts - Basis for imposition - Unjust enrichment - [See thirteenth Family Law - Topic 1008 ].

Cases Noticed:

Dyer v. Dyer (1788), 2 Cox. Eq. Cas. 92; 30 E.R. 42, refd to. [para. 12].

Becker v. Pettkus, [1980] 2 S.C.R. 834; 34 N.R. 384, consd. [para. 13].

Rathwell v. Rathwell, [1978] 2 S.C.R. 436; 19 N.R. 91, consd. [para. 16].

Pecore v. Pecore, [2007] 1 S.C.R. 795; 361 N.R. 1; 224 O.A.C. 330; 2007 SCC 17, consd. [para. 18].

Murdoch v. Murdoch, [1975] 1 S.C.R. 423, refd to. [para. 21].

Gissing v. Gissing, [1970] 2 All E.R. 780 (H.L.), refd to. [para. 21].

Pettitt v. Pettitt, [1970] A.C. 777 (H.L.), refd to. [para. 27].

Peel (Regional Municipality) v. Ontario, [1992] 3 S.C.R. 762; 144 N.R. 1; 59 O.A.C. 81, appld. [para. 31].

Peter v. Beblow, [1993] 1 S.C.R. 980; 150 N.R. 1; 23 B.C.A.C. 81; 39 W.A.C. 81, revd. (1990), 50 B.C.L.R.(2d) 266 (C.A.), revd. [1988] B.C.J. No. 887 (S.C.), appld. [para. 33].

Sorochan v. Sorochan, [1986] 2 S.C.R. 38; 69 N.R. 81; 74 A.R. 67, appld. [para. 37].

Garland v. Consumers' Gas Co., [2004] 1 S.C.R. 629; 319 N.R. 38; 186 O.A.C. 128; 2004 SCC 25, appld. [para. 37].

Reference Re Goods and Services Tax, [1992] 2 S.C.R. 445; 138 N.R. 247; 127 A.R. 161; 20 W.A.C. 161, refd to. [para. 41].

Mack et al. v. Canada (Attorney General) (2002), 165 O.A.C. 17; 60 O.R.(3d) 737 (C.A.), refd to. [para. 41].

Nova Scotia (Attorney General) v. Walsh - see Walsh v. Bona.

Walsh v. Bona, [2002] 4 S.C.R. 325; 297 N.R. 203; 210 N.S.R.(2d) 273; 659 A.P.R. 273; 2002 SCC 83, refd to. [para. 45].

International Corona Resources Ltd. v. LAC Minerals Ltd., [1989] 2 S.C.R. 574; 101 N.R. 239; 36 O.A.C. 57, refd to. [para. 46].

Bell v. Bailey (2001), 148 O.A.C. 333; 203 D.L.R.(4th) 589 (C.A.), refd to. [para. 49].

Wilson v. Fotsch (2010), 286 B.C.A.C. 276; 484 W.A.C. 276; 319 D.L.R.(4th) 26; 2010 BCCA 226, refd to. [para. 49].

Pickelein v. Gillmore (1997), 87 B.C.A.C. 193; 143 W.A.C. 193; 30 B.C.L.R.(3d) 44 (C.A.), refd to. [para. 49].

Harrison v. Kalinocha (1994), 90 B.C.L.R.(2d) 273 (C.A.), refd to. [para. 49].

MacFarlane v. Smith (2003), 256 N.B.R.(2d) 108; 670 A.P.R. 108; 2003 NBCA 6, refd to. [para. 49].

Shannon v. Gidden (1999), 129 B.C.A.C. 257; 210 W.A.C. 257; 71 B.C.L.R.(3d) 40; 1999 BCCA 539, refd to. [para. 49].

Herman v. Smith (1984), 56 A.R. 74; 42 R.F.L.(2d) 154 (Q.B.), refd to. [para. 51].

Clarke v. Clarke, [1990] 2 S.C.R. 795; 113 N.R. 321; 101 N.S.R.(2d) 1; 275 A.P.R. 1, refd to. [para. 61].

Cadbury Schweppes Inc. et al. v. FBI Foods Ltd. et al., [1999] 1 S.C.R. 142; 235 N.R. 30; 117 B.C.A.C. 161; 191 W.A.C. 161, refd to. [para. 71].

Soulos v. Korkontzilas et al., [1997] 2 S.C.R. 217; 212 N.R. 1; 100 O.A.C. 241, refd to. [para. 71].

Pacific National Investments Ltd. v. Victoria (City), [2004] 3 S.C.R. 575; 327 N.R. 100; 206 B.C.A.C. 99; 338 W.A.C. 99; 2004 SCC 75, refd to. [para. 72].

Birmingham v. Ferguson, [2004] O.A.C. Uned. 392; 2004 CanLII 4764 (C.A.), refd to. [para. 91].

McDougall v. Gesell Estate (2001), 153 Man.R.(2d) 54; 238 W.A.C. 54; 2001 MBCA 3, refd to. [para. 91].

Nasser v. Mayer-Nasser (2000), 130 O.A.C. 52; 5 R.F.L.(5th) 100 (C.A.), refd to. [para. 91].

Panara v. Di Ascenzo (2005), 361 A.R. 382; 339 W.A.C. 382; 2005 ABCA 47, refd to. [para. 91].

Ford v. Werden (1996), 78 B.C.A.C. 126; 128 W.A.C. 126; 27 B.C.L.R.(3d) 169 (C.A.), refd to. [para. 103].

Thomas v. Fenton (2006), 228 B.C.A.C. 82; 376 W.A.C. 82; 269 D.L.R.(4th) 376; 2006 BCCA 299, refd to. [para. 105].

Giles v. McEwan (1896), 11 Man. R. 150 (Q.B. en banc), refd to. [para. 111].

Garland v. Consumers' Gas Co., [1998] 3 S.C.R. 112; 231 N.R. 1; 114 O.A.C. 1, refd to. [para. 112].

Nance v. British Columbia Electric Railway Co., [1951] A.C. 601 (P.C.), refd to. [para. 158].

D.B.S. v. S.R.G., [2006] 2 S.C.R. 231; 351 N.R. 201; 391 A.R. 297; 377 W.A.C. 297; 2006 SCC 37, consd. [para. 206].

L.S. v. E.P. (1999), 126 B.C.A.C. 28; 206 W.A.C. 28; 67 B.C.L.R.(3d) 254 (C.A.), refd to. [para. 206].

MacKinnon v. MacKinnon (2005), 199 O.A.C. 353; 75 O.R.(3d) 175 (C.A.), refd to. [para. 211].

Statutes Noticed:

Family Relations Act, R.S.B.C. 1996, c. 128, sect. 93(5)(d) [para. 204].

Authors and Works Noticed:

Birks, Peter, An Introduction to the Law of Restitution (1985), pp. 394 to 395 [para. 55]; 415 [para. 101].

Birks, Peter, Unjust Enrichment (2nd Ed. 2005), pp. 56 to 57 [para. 120].

Davies, J.D., Duties of Confidence and Loyalty, [1990] Lloyd's Mar. & Com. L.Q. 4, p. 5 [para. 71].

Fridman, Gerald Henry Louis, Restitution (2nd Ed. 1992), c. 3 to 5, 7, 8, 10 [para. 31]; p. 398 [para. 79].

Goff, Robert, and Jones, Gareth, The Law of Restitution (7th Ed. 2007), c. 4 to 11, 17, 19 to 26 [para. 31].

Gordon, Marie L., Blame Over: Retroactive Child and Spousal Support in the Post-Guideline Era (2004-2005), 23 C.F.L.Q. 243, pp. 281, 291 to 292 [para. 208].

Maddaugh, Peter D., and McCamus, John D., The Law of Restitution (1990), p. 46 [para. 41].

Maddaugh, Peter D., and McCamus, John D., The Law of Restitution (1990) (2010 Looseleaf Update, Release 6), vol. 1, § 4:200.30 [para. 74]; vol. 2, § 13:200 [para. 111].

McCamus, John D., Restitution on Dissolution of Marital and Other Intimate Relationships: Constructive Trust or Quantum Meruit?, in Neyers, Jason W., McInnes, Mitchell, and Pitel, Stephen G.A., Understanding Unjust Enrichment (2004), pp. 365 [para. 98]; 366 [paras. 81, 93]; 375 to 376 [para. 55]; 376 [para. 48]; 377 [para. 55].

McLeod, James G., and Mamo, Alfred A., Matrimonial Property Law in Canada (1993) (2010 Looseleaf Update, Release 8), pp. 40.78 to 40.79 [para. 49].

McLeod, James G., Annotation to Herman v. Smith (1984), 42 R.F.L.(2d) 154, p. 156 [para. 51].

Mee, John, The Property Rights of Cohabitees: An Analysis of Equity's Response in Five Common Law Jurisdictions (1999), pp. 39 to 43 [para. 14].

Neyers, Jason W., McInnes, Mitchell, and Pitel, Stephen G.A., Understanding Unjust Enrichment (2004), p. 376 [para. 48].

Oosterhoff, Albert H., Text, Commentary and Materials (7th Ed. 2009), pp. 25 [para. 16]; 641 to 647 [para. 14]; 642 [paras. 13, 25]; 642 to 643 [para. 27]; 652 [para. 25].

Parkinson, Patrick, Beyond Pettkus v. Becker: Quantifying Relief for Unjust Enrichment (1993), 43 U.T.L.J. 217, p. 222 [para. 101]; 243 [para. 98]; 245 [para. 95]; 256 [para. 99].

Pettit, Philip H., Equity and the Law of Trusts (11th Ed. 2009), p. 67 [para. 16].

Scane, Ralph E., Relationships "Tantamount to Spousal", Unjust Enrichment and Constructive Trusts (1991), 70 Can. Bar Rev. 260, p. 281 [para. 48].

Waters, Donovan W.M., Case Comment (1975), 53 Can. Bar Rev. 366, p. 368 [para. 27].

Waters, Donovan W.M., The Law of Trusts in Canada (3rd Ed. 2005), pp. 19, 20, 21, 22 [para. 16]; 430 to 435 [paras. 14, 27]; 431, 432 [para. 25].

Youdan, Timothy G., Resulting and Constructive Trusts, in Special Lectures of the Law Society of Upper Canada 1993: Family Law: Roles, Fairness and Equality (1994), pp. 172 to 174 [para. 14].

Counsel:

Armand A. Petronio and Geoffrey B. Gomery, for the appellant, Margaret Kerr;

Susan G. Label and Marie-France Major, for the respondent, Nelson Baranow;

John E. Johnson, for the appellant, Michele Vanasse;

H. Hunter Phillips, for the respondent, David Seguin.

Solicitors of Record:

Hawthorne, Piggott & Company, Burnaby, B.C., for the appellant, Margaret Kerr;

Susan G. Label, Vancouver, B.C., for the respondent, Nelson Baranow;

Nelligan O'Brien Payne, Ottawa, Ontario, for the appellant, Michele Vanasse;

MacKinnon & Phillips, Ottawa, Ontario, for the respondent, David Seguin.

These appeals, argued consecutively, were heard on April 21, 2010, before McLachlin, C.J.C., Binnie, LeBel, Abella, Charron, Rothstein and Cromwell, JJ., of the Supreme Court of Canada. In reasons written by Cromwell, J., the Supreme Court delivered the following judgments, in both official languages, on February 18, 2011.

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    ...of Canada Ltd. v. General Mills (1983), 42 O.R. (2d) 645 at pp. 646-47 (H.C.J.). [51] Moore v. Sweet, 2018 SCC 52; Kerr v. Baranow, 2011 SCC 10; Garland v. Consumers' Gas Co., 2004 SCC 25; Peel (Regional Municipality) v. Canada, [1992] 3 S.C.R. 762; Pettkus v. Becker, [1980] 2 S.C.R. [52] [......
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