When a common-law relationship ends, figuring out who is entitled to what can be complicated. Unlike married spouses, who have statutory property-sharing rights under Ontario’s Family Law Act,¹ common-law partners do not have the same automatic right to share in each other’s property — even after a long-term relationship.

That does not necessarily mean, however, that a common-law partner has no claim to property or wealth accumulated during the relationship. In some circumstances, a partner may be able to make a claim for “unjust enrichment.” As part of that claim, the court may consider whether the couple was involved in what is known as a “joint family venture” (“JFV”).

Read more about joint venture agreement.

What Is a Joint Family Venture (“JFV”)?

A joint family venture may exist where partners have combined their efforts, finances, or responsibilities to work toward shared family and financial goals. In practical terms, the couple may have functioned as an economic partnership, even if certain assets (such as the family home, investments, or a business) were legally owned by only one partner.

The concept was addressed by the Supreme Court of Canada in Kerr v Baranow,² a landmark case that changed how courts approach unjust enrichment claims between common-law partners. Rather than looking at each contribution in isolation, the Court directed judges to consider the relationship as a whole. Justice Cromwell emphasized that courts should look beyond whose name appears on an asset and consider what each partner contributed to the couple’s shared family and economic life.³

Importantly, a JFV is not a separate legal claim, nor does finding a JFV mean that property will automatically be divided equally. Instead, it is a framework the court may use when deciding whether one partner was unjustly enriched at the expense of the other and, if so, what remedy may be appropriate.

What Must Be Proven?

In Gibson v. Mead, the Court confirmed three elements that must be established for a successful unjust enrichment claim:

1. The other partner received a benefit or an enrichment;
2. The claimant suffered a corresponding deprivation; and,
3. There is no legal reason and/or juristic reason for the enrichment.⁴

In simpler terms, the court looks at whether one partner benefited from the other partner’s contributions, whether those contributions came at a cost to the contributing partner, and whether there is a legal reason why the benefiting partner should be entitled to keep that benefit without compensating the other.

What Factors Will the Court Consider?

In Kerr, the Supreme Court of Canada identified four non-exhaustive factors that can help determine whether a joint family venture existed:

• Mutual Effort – Did the partners work together toward shared or common goals?
• Economic Integration – To what extent did the partners combine or intertwine their finances?
• Actual Intent – Did the way the partners lived and organized their affairs show that they intended to operate as an economic partnership?
• Priority of Family – Did either partner give up or reduce income, education, career opportunities, or other personal opportunities for the benefit of the family?⁵

No single factor determines the outcome. The court looks at the full history of the relationship, including how the couple managed their finances and property, their employment and career decisions, how they shared childcare and household responsibilities, and how they generally organized their lives together.

This means that contributions do not have to be purely financial. For example, a partner who took on more childcare or household responsibilities may have enabled the other partner to focus on building a career, business, or investments. Those contributions can also be relevant when the court considers whether the couple operated as a joint family venture.

What Remedies Are Available?

If unjust enrichment is established in the context of a joint family venture, and one partner leaves the relationship with a disproportionate share of the wealth the couple accumulated together, the court may order that the other partner receive financial compensation.

The amount is not necessarily based on reimbursing the claimant dollar-for-dollar for individual contributions. Instead, the court may look at the claimant’s proportionate contribution to the wealth accumulated during the relationship and award a monetary remedy that reflects that contribution.

In some cases, the court may also grant the claimant an interest in a specific asset through what is known as a “constructive trust.” In practical terms, this means the court can recognize that a person who is not the registered owner nevertheless has an interest in the property.

A constructive trust is generally available where financial compensation alone would not be adequate and there is a sufficient connection between the claimant’s contributions and the particular property in question.

Why These Claims Matter

The joint family venture concept recognizes the reality of many modern relationships: couples may build a life, raise a family, combine their finances, make sacrifices for one another, and accumulate wealth together without ever getting legally married.

The law therefore recognizes that fairness cannot always be determined simply by looking at whose name appears on the title to a home, investment account, or other asset. The JFV framework allows courts to consider both financial and non-financial contributions, including caregiving and household responsibilities, that may have helped the couple build wealth during their relationship.

While a joint family venture can provide an equitable remedy where one common-law partner has been unjustly enriched, these cases are highly dependent on the particular facts of each relationship. Evidence about finances, property ownership, household and childcare responsibilities, career decisions, and the parties’ intentions can all play an important role in the outcome.

Understanding how courts assess these contributions and the way a couple organized their financial and family life can be important to protecting your interests when a common-law relationship ends.

Hummingbird Lawyers LLP’s family law team assists clients with common-law property disputes, unjust enrichment claims, and constructive trust remedies. Contact our firm to book a consultation and learn more about your rights and options.

References

1. Family Law Act, RSO 1990.
2. Kerr v Baranow, 2011 SCC 10 (CanLII), [2011] 1 SCR 269.
3. Ibid.
4. Gibson v Mead, 2015 ONSC 6935 (CanLII) at para 39.
5. Supra note 2.