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Common Law Issues The law regarding common law relationships is different than in cases of divorce. Discuss the issues that affect unmarried couples here.

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  #1 (permalink)  
Old 01-14-2010, 02:21 AM
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justafool is on a distinguished road
Default Application of Resulting and Constructive Trusts?

Here's the situation

1)live in Ontario cohabited 2 1/2 years
2) Claim against me unjust enrichment.
3) I've owned house 23 years paid mortgage and all bills and utilities throughout cohabitation
4) Applicant paid for some groceries and performed various household duties cleaning, laundry, etc
5) Applicant also assisted in painting house 75%. I paid for all materials. House needs repainting now. Very quick job poor workmanship
6)Painting not requested by me but done at applicants insistence
6) Applicant claiming unjust enrichment against me and thereby interest in home and won't leave
7) Came to agreement in March 2009. Court ordered Occupancy Rent as per agreement.Applicant in arrears 98% of money still owing
8)Claim 15% interest in home or $50 000
9) Finances always kept separate
10) No children of relationship
11) House depreciated in value over length of cohabitation due to market trends
12) No common intention for interest in home or long term plans ever discussed or inferred by applicant or myself or mentioned in documents
13) Applicant moved in because she was being evicted from residence as friend not a partner
14) Applicants sources of income were child support for one child (adult now) and 1 year OSAP loans and grants as single mother
15) Applicant has not claimed remedy at which she is seeking

My question are these

1)Am I correct in assuming that in Ontario a person cannot claim a resulting trust unless they contribute to the acquisition or improvement of the property by financial means? (Hamilton v. Hamilton, 1996 CanLII 599) (ON C.A.)In this case a resulting trust would not apply?

2)In the case of a constructive trust, there must be both a threshold in the amount of the contribution that must be met as well as a duration of time to the relationship. My understanding is that in Ontario the minimum duration of the relationship is measured by the 3 years stated to reach the status of spouse in the FLA as a minimum length of the relationship to warrant a constructive trust award. Is this correct?

3) My understanding is also that in the case of a constructive trust the amount of the unjust enrichment is calculated on a quantum merit basis of the value of services received by both parties. If a monetary award is sufficient then a constructive trust is not an appropriate remedy and that an award in a constructive trust claim is given normally on value survived basis

4) Does that mean that if a monetary award is suitable (which is however unlikely I believe because I don't believe unjust enrichment will be found) and is minimal that a constructive trust award is not an option? Or can a constructive trust award be given as a monetary award award in a claim like this as a court settlement even though the law seems to suggest otherwise?

Bell v. Bailey, 2001 CanLII 11608 (ON C.A.)
36] The trial judge relied on Clark v. Vanderhoeven 1997 CanLII 12238 (ON S.C.), (1997), 28 R.F.L. (4th) 152 (Ont. Ct. (Gen. Div.)) as authority for the broad proposition that on a finding of a constructive trust the value of the trust can be converted into a monetary award and judgment issued accordingly. I accept that Marshman J. made a statement to that effect in Clark. However, the monetary award of $100,000 in that case was what the trial judge said was the value of the services received by the defendant. Thus, the trial judge’s comments about directly valuing the constructive trust interest of the defendant and converting it into a monetary award are obiter. In any case, in my view, the trial judge’s comments are not consistent with Peter v. Beblow.
[37] I should add that I accept that the value received calculation of a monetary award may, to some degree, reflect the extent to which the value of a particular asset was enhanced by the claimant’s direct and indirect contributions. See Nasser v. Mayer-Nasser 2000 CanLII 5654 (ON C.A.), (2000), 130 O.A.C. 52 (C.A.) (leave to appeal to S.C.C. dismissed, [2000] S.C.C.A. No. 206). This, however, is part of the value received analysis; it does not mean that a back-door route to a monetary award by first finding a constructive trust and then valuing the claimant’s constructive trust interest is justified.

6) What other options of remedy would there be in this claim then if neither a resulting trust or constructive trust would be an appropriate remedy?

7) Would the court deem it appropriate to consider the financial contribution of groceries by the applicant (Usually $200 a month) to be relevant when it's source was money provided by the father to support his child and money that was given and loaned to pay for education?

I am self represented and am somewhat confused by this. Any help would be greatly appreciated not just for myself but I'm sure for others
  #2 (permalink)  
Old 01-14-2010, 03:19 AM
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billiechic is on a distinguished road

What was your marital status on your income tax?
  #3 (permalink)  
Old 01-14-2010, 08:13 AM
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Mess is a jewel in the roughMess is a jewel in the roughMess is a jewel in the roughMess is a jewel in the rough

I almost think that you are kidding asking a question like this. No wonder you are confused with all the legalese you are posting...

The "constructive trust" is irrelevant. It is a label, you need to be concerned about whether the ex has reason to have a claim.

You are really really over-complicating your life worrying about such a thing. Let the judge worry about it. Put it this way: The judge finds you owe her some money. How does it change your life if the judge mentions a "constructive trust". Answer: Not at all.

Another hint: Using language like "quantum merit basis of value" doesn't help anyone on the board understand what you are talking about. It makes it come across like you just cut and pasted these paragraphs from some legal publication. Again, no wonder you are confused, you are confusing everyone else.

Now a more realistic question, does her groceries contribution affect her claim at all? It shouldn't, but she can argue anything she wants and you should answer it. $200 per month isn't much to feed 3 people, it doesn't seem like this amounted to any extra "payment" over and above her own and her child's expense.

If she was living rent free with her child the contribution of painting (which you should point out is a maintainence, not a capital expense) is nominal and you would say it was inconsequential. Categorize it along with housework, etc, presumably everyone in the household made some contribution.

If she was doing all of the housework and you were relaxing she might have a different argument. You didn't have a clear contract that she was providing duties in exchange for housing, it seems like the opposite, that you began a relationship soon after inviting her to move in. Even so, $50k seems excessive.

I wouldn't say that she has a case, but I am not a lawyer. I think even a lawyer would find your wording annoying.
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Old 01-14-2010, 12:06 PM
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justafool is on a distinguished road

Billechic neither of us did

Mess sorry I don't mean to be annoying. Quantum merit is just weighing the contributions of both parties to determine a case of unjust enrichment. If you read case laws in regard to the subject they use the terms over and over again.

The law is very specific and those are the terms they use. I have talked to lawyers and they understand what those terms mean. They don't find it annoying at all. Instead it speeds up the process of asking questions because they can be answered using the proper terminology in the context of the actual law with less explanation.

The terms I used are mentioned over and over again in all the case laws and my feeling is that if someone doesn't understand the terms then they wouldn't know the answer.

You see the thing is that unjust enrichment is a term (or a label). A constructive trust has a remedy and a remedy is only used if the unjust enrichment meets the requirements on a constructive trust. In order for an award to be given there has to be a legal remedy. They have legal terms for forms of unjust enrichment and awards are granted by way of a legal remedy specific to the form of the unjust enrichment . That's a completely different thing. Awards are granted in the form of legal remedy by way of establishing remedies for,

Express Trusts
Resulting trusts
Constructive trusts
Proprietary Estoppel

not just by establishing unjust enrichment

First a judge has to determine an unjust enrichment, then he has to find a legal remedy to grant an award

Again the law is very specific and I'm looking for someone with a specific knowledge,

I'm not asking if unjust enrichment would be found (that's up to a judge) and I understand my question is complicated. My question is as to whether there is a legal remedy provided for an award in my case. Constructive Trust and Resulting trusts (most common awards) have a criteria that has to be met that is beyond just an unjust enrichment or they don't apply. Think of unjust enrichment as the vehicle but the legal remedy is the road you have to take to get an award

that's all sorry if it annoyed you
  #5 (permalink)  
Old 01-14-2010, 12:47 PM
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Mess is a jewel in the roughMess is a jewel in the roughMess is a jewel in the roughMess is a jewel in the rough

Honestly why aren't you asking a lawyer then? I understand full well what quantum merit means, I just can't be bothered reading such jargon.

You are incorrect that the trust is a remedy, it is a label or device. The remedy is equalization, one spouse pays the other an amount owed. Constructive Trusts are applied because there is nothing specific in common law to apply for these equalizations, so a judge (in whatever precedent case) used this to enforce his finding that money was owed. But it is just a device.

If there is a finding of entitlement, then the device is applied. I think we are saying the same thing here.

My point is, if she has an argument for entitlement, the judge will find a device to apply. What do you care which device or what the details are? I guess you want to analyse the details of Constructive Trusts and find some loophole that would prevent it being applied? I think you're on the wrong board for that.
But anyway, I'm sorry I can't help. Enjoy your thread.
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Old 01-14-2010, 02:12 PM
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justafool is on a distinguished road

Lawyers cost money and are very reserved toward answering questions for free. They say I'm not sure but if you want to pay to have me represent you I'll find out...This whole scenario has already put me in the poorhouse. I've paid thousands to lawyers only to learn that they are in the business of making money. That's all. I haven't found one that has a lot of knowlege in regard to my situation.

I didn't say constructive trust is a remedy. I said constructive trusts have a legal remedy.

You're right though, because it's solely up to the judge to determine if there's an unjust enrichment. I'm reaching ahead to argue that even if that is the case, it wouldn't fit the scope of either a resulting or constructive trust. So without an available form of remedy, there can be no award. I've completely ruled out remedies for all forms of trust that I'm aware are used. The only one I'm not completely sure about is a constructive trust. I'm only 90% sure it wouldn't apply.

If the trust issue involved doesn't fit within the scope of trusts of which legal remedies are provided. The judge would have no availability to grant an award. They do go by the book and are bound to follow the law when the law is clearly stated in previous case laws. In cases were they haven't applied appropriate remedy, appeals have overturned awards for judgments. If a judge was pointed to appropriate case law which revealed that perhaps an appeal would have been unnecessary. An appropriate judgement would have been reached in the first place.

The remedy of equalization of property only applies to married spouses in Ontario unless a trust is applied for which there is a remedy.

Anyone who chooses to represent themselves should be familiar with "the jargon". That's where the tools are that they need in order to defend against a claim.

My thoughts anyway and I'm sure anyone who is representing themselves in a claim like this would find the information in this thread very useful. They can google "jargon" and have a much clearer understanding. Which is what I did
  #7 (permalink)  
Old 01-14-2010, 02:20 PM
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sava123 is on a distinguished road

1.My understanding that in Ontario has to be 3 years of cohabitation before you became common law unless you have kids
2. What is about yours and her income – common law spouses can claim spousal support
3. She can claim constructive claim/monetary award due common law partners don’t have any obligations to performed various household duties cleaning, laundry, etc,
4. Did you have a joint account… all this you have to consideration
  #8 (permalink)  
Old 01-14-2010, 04:03 PM
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dadtotheend will become famous soon enoughdadtotheend will become famous soon enough

justafool, you are asking laypeople, some of whom are very informed, some not, to comment after loading up your question with legalise and technical terms that are way beyond the scope of the vast majority of people here.

Dude, good luck finding the needle (person who knows what the hell you're talking about) in this haystack. You already know more than 98% of us on the topic.
  #9 (permalink)  
Old 01-14-2010, 05:56 PM
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justafool is on a distinguished road

I know dadto. It's kind of a hail mary play. I've posted it on another site as well. I was just hoping maybe someone could say, "I'm aware because I was in a similar situation and the judge said a constructive trust meant at least 3 years" or anything like that relevent by their experience or knowledge

Sava - The income thing is about people who claim equity have to come to court with clean hands

I have to question whether it's appropriate for someone to take child support money which is court ordered to support a child and designate there own equity claim as a result? Osap grants and loans aquired under the premise of being a single mother and needing the funds for education and rent are questionable too, I would think.

As far as household duties the law also specifies a relationship of significant length and refers common law "spouses" if I remember correctly. Maybe I'm splitting hairs but maybe not, but laws tend to be very precise in their definitions

no joint account all financial completely seperate
  #10 (permalink)  
Old 01-15-2010, 09:18 AM
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Sorry for confusion... in Ontario has to be 3 years or children in relationship.
Re: clean hands – judge most likely will decide that she spent money for family – and this for your benefits as well… since It’s very short relationship, the support can be max for 3 years (if any…).
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