Citing Case Law

[justafool]

Thanks flntc. Max, How long did the judge give her to vacate and if there are guidelines and decisions set down in previous decisions and case laws. Aren't judges bound to rule the same especially in cases of higher courts? There are some guidelines and statements set down by the Superior Court and Ontario Court of Appeal which I would have thought they where bound to follow.

[justafool]

These would be points I would think that a Lower Court would be bound to follow by direction of the Supreme Court. This deals specifically to Constructive Trusts by the Supreme Court

Peter v. Beblow, [1993] 1 S.C.R. 980

"Spousal services" given by one party to the other in the relationship should be taken as being given with the expectation of compensation absent evidence to the contrary. The nature and duration of the relationship, as well as the contribution made, should be considered. Relief in the form of a personal judgment or property interest should adequately reflect the fact that the unpaid services of one party to the relationship enhanced the income earning capacity and the ability of the other to acquire assets.

The nature and duration of the relationship, as well as the contribution made, should be considered.

The constructive trust accords well in a family situation in that the parties to the relationship expect to receive on dissolution of the relationship not a fee for services based on market value but rather a fair share of the property or wealth accumulated through joint effort.

Situations may occur where an award for a monetary sum may be the most appropriate remedy. A number of considerations exist: (a) whether the plaintiff's entitlement is relatively small compared to the value of the whole property in question; (b) whether the defendant is able to satisfy the plaintiff's claim without a sale of the whole property in question; (c) whether the plaintiff has a special attachment to the property in question; (d) what hardship might be caused to the defendant if the plaintiff obtained the rights flowing from the award of an interest in the property.

The value surviving approach is often the preferable method. It is usually more equitable and most closely accords with the expectation of the parties as to the division of jointly acquired assets. It also avoids the difficult task of assigning a precise dollar value to domestic services. Instead, the contributions of the parties can more accurately be expressed as a percentage of the accumulated wealth existing at the termination of the relationship.

In short, the concern for clarity and doctrinal integrity with which this Court has long been preoccupied in this area mandates that the basic principles governing the rights and remedies for unjust enrichment remain the same for all cases.

[justafool]

In this case The Ontario Court of appeals is dealing with a Resulting Trust and sets the parameters for cases of resulting trust accordingly It also deals specifically in terms of unjust enrichment and I think it's parameters would also have to be considered in both cases of resulting trust but also constructive trust

Campbell v. Campbell, 1999 CanLII 2294 (ON C.A.)



The common law has never been willing to
compensate a plaintiff on the sole basis that

his actions have benefited another.
In the process of fleshing out the concept of juristic
justification the existing law of restitution should not be
forgotten. Goff and Jones summarize and develop the various
justifications for the retention of benefits by an enriched
defendant recognized by this traditional law. Without exploring
fully the content of each of these justifications they are as
follows:

(i) the plaintiff conferred the benefit
as a valid gift or in pursuance of a valid
common law, equitable or statutory obligation
which he owed to the defendant;

(ii) the plaintiff submitted to, or
compromised, the defendant’s honest
claim;

(iii) the plaintiff conferred the
benefit while performing an obligation
which he owed to a third party or
otherwise while acting voluntarily in
his own self interest;

(iv) the plaintiff acted officiously in
conferring the benefit;

(v) the defendant cannot be restored to
his original position or is a bona fide
purchaser;

(vi) public policy precludes
Thus,
restitution, more narrowly than tort or
contract, focuses on re-establishing equality
as between two parties, as a response to a
disruption of equilibrium through a
subtraction or taking. This observation has
dual ramifications for the concept of
“injustice” in the context of restitution.
First, the injustice lies in one person’s
retaining something which he or she ought not
to retain, requiring that the scales be
righted. Second, the required injustice must
take into account not only what is fair to
the plaintiff; it must also consider what is
fair to the defendant. It is not enough that
the plaintiff has made a payment or rendered
services which it was not obliged to make or
render; it must also be shown that the
defendant as a consequence is in possession
of a benefit, and it is fair and just for the
defendant to disgorge that benefit.
[30] Based on the foregoing authorities, I have come to this
conclusion: assuming that Laura was enriched by the acquisition
of the new barn and the other improvements and that her sons had
sustained a corresponding deprivation, for them to establish that
their mother was unjustly enriched they were required to prove
that:

(1) In providing the improvements to their mother’s
farm, they prejudiced themselves with the reasonable expectation
of receiving something in return from her and that she freely
accepted the benefits conferred by her sons in circumstances
where she knew, or ought to have known, of that reasonable
expectation.

(2) Considering all of the relevant
circumstances, it would be neither just,
nor fair, to permit their mother to
retain the benefit which they conferred
on her without requiring that she
compensate them for the cost of the
The law of unjust enrichment thus construes the absence of
donative intent not unilaterally, as a subjective matter taking
place in the plaintiff’s head, but rather bilaterally, as an
inter-subjective matter taking place between plaintiff and
defendant. Forcing the defendant to disgorge the benefit
received in the absence of this bilaterality would amount to
granting the plaintiff the privilege of unilaterally constituting
another’s obligation. Unrequested benefits fall outside the law
of unjust enrichment in that, having failed to display the
required bilaterality, their disgorgement would itself be unjust.
[33] In his analysis of Pettkus at p.466, the author elaborates
this view:

The third observation, which I will now elaborate, is that
Pettkus reveals the bilaterality of unjust enrichment in that it
explicitly holds that, though necessary, the plaintiff’s merely
subjective lack of donative intent is not in and of itself
sufficient to ground the defendant’s liability in unjust
enrichment. Becker’s expectation of remuneration, even if
eminently reasonable, is not in and of itself sufficient to
generate a restitutionary remedy. Pettkus’s free acceptance of
the benefit in circumstances in which he knew or ought to have
known of Becker’s reasonable expectation is an additional
necessary element. In the absence of such acceptance on
Pettkus’s part, Becker’s claim would not have succeeded. The non-
gratuitous character of the benefit, that is, must show on both
sides. It must appear not unilaterally but bilaterally.
[34] And further at p.470 he states:

Whether in Moses or in Pettkus, granting the plaintiff’s
wish for a restitutionary remedy in the absence of such evidence
of bilaterality would have violated the equality of the parties.
The equality that normatively structures the relation between
plaintiff and defendant informs the requirement that, factually,
the plaintiff must provide evidence that the non-gratuitousness
of the benefit shows on both sides. This normatively ordained
evidentiary journey from wish to reality, from desire to right,
is that which he who confers unrequested and/or unaccepted
benefits cannot negotiate. This failure to establish
bilaterality accounts for the law of unjust enrichment’s refusal
to grant him restitution.

[Max22258]

Actually all 3 judge have said this was my house and the fact that she laid criminal charges against me 3 days before vacating raised a red flag with them, but not one of them even if they said it was my house has had the guts to put her out. This is where the guideline are not apply

[justafool]

Have you applied for a motion for either exclusive possession or to have her removed? My understanding is that there is some confusion with judges as far as granting exclusive possession in common law relationships that has not yet been resolved in the courts. Apparantly a judge ruled that it only applied in the case of married couples and was appealled but was later dropped. This is what I really need to know. Once you are granted possession by a judge. What is the next step to get her out.

I swear the one I've got will have to be dragged out!! How do you get her out if she refuses to leave?

[Max22258]

A motion to have her removed as it was clear with the 3 judges that the house belong to me. But they always hesitate as she has a child which is not mine and she has stopped working and she is not looking.

[justafool]

At least I have no children to deal with. Have you gone after the same motion? Once a decision on possession is reached does a motion take long? I'm concerned about having more trouble getting her out as winter approaches.

[Max22258]

No it was about 10 motion with affidavit and the next one is a motion to have her remove friom the house as the last motion gave her until the 15 September to move

[MaggieT]

Hi Folks:
I have been reading these posts with great interest as I have been threated by the ex to file an unjust enrichment claim against me to offset his child support arrears....
Anyhow, I would just like to know....If the person who is living in your homes is not on title...why can you not just change the locks and not allow them back in?
It seems to me that "playing" by the "rules" which really don't exist is not getting any results.
If the law outlines many "grey areas" with regards to unjust enrichment, then I don't see how this could be addressed in any negative manner.
Just a thought???!!!!

[Max22258]

Because as I talked to the OPP unless there is a court order they would allow the person to get in by simply breaking in as they are entitled to live at this location. The court decide this and if she wants to come back once there is a court order I can charge her with break and enter. until then I can't as the OPP do not know the law and play it safe.