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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  
Old 03-26-2007, 12:47 PM
myrivers myrivers is offline
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Default Unjust Enrichment case

My situation: CL for 8yrs and a home that I purchased 6 yrs ago. My name only on title using my money for downpayment. Relationship has ended. CL Ex has not worked or contributed financially to the house or ANY bills, not even groceries or her smoking habit. 1 child in relationahip. We have agreement on CS and custody plus agreement on SS support. Ex has contributed to house upkeep, child raising, gardening, lawn mowing, 90% of house renovations paid for by me using contractors. 10% her contribution, no cash just effort. Ex refused to work outside the house even after young child was in school full time. After years of 'encouragement' to get a job to cover a few of the bills (childs clothing, cigarettes, long distance phone bill) Basically I paid for everything. Wrong Move on my part.

But now she wants a portion of the value of the house. Can she qualify to bring an Unjust Enrichment case against me?
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Old 03-31-2007, 06:50 AM
logicalvelocity logicalvelocity is offline
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myrivers,

as you mentioned,

Quote:
But now she wants a portion of the value of the house. Can she qualify to bring an Unjust Enrichment case against me?
I believe they could bring a case or claim against you. The success of their claims will swing on the facts.

To obtain a better understanding of their pending claims potential, read the leading SCC decision on the issue of unjust enrichment:

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

http://scc.lexum.umontreal.ca/en/199...3rcs1-980.html
BACKGROUND

...Appellant lived in a common law relationship with respondent for 12 years, doing the domestic work of the household and raising the children of their blended family without compensation. Respondent had purchased the house occupied by the couple and appellant had undertaken a number of projects ‑‑ gardening, planting a hedge, painting ‑‑ to maintain or better it during the relationship. During the course of the relationship respondent was able to pay off the mortgage on the house and to buy a houseboat and a van; appellant bought a lot with money earned outside the family unit. The house lay vacant after the parties separated....

Per La Forest, Sopinka, McLachlin and Iacobucci JJ.: The appropriate remedy--a monetary award or the imposition of a constructive trust--must only be decided once an unjust enrichment giving rise to restitution is established. The constructive trust is available where monetary damages are inadequate and where there is a link between the contribution that founds the action and the property in which the constructive trust is claimed.

In determining whether an unjust enrichment exists, policy considerations are to be considered under the head of absence of juristic reason for the unjust enrichment. Services given on the voluntary assumption of the role of wife and step‑mother give rise to a remedy based on unjust enrichment. Generally, a common law spouse owes no duty at common law, in equity or by statute to perform work or services for the other party to the relationship. Homemaking and childcare services may, in a relationship, give rise to equitable claims against the other party. It is not unfair for a recipient of indirect or non‑financial contributions to be forced to provide recompense for those contributions. Domestic services cannot logically be distinguished from other contributions. The test as to whether there is an unjust enrichment without juristic reason is flexible and the factors to be considered vary. No obligation arose here from the parties' circumstances and the elements giving rise to a legal gift were not present.
Equity finds a role where an injustice without a legal remedy exists. The courts can use the equitable doctrine of unjust enrichment to remedy the situation even though the legislature has chosen to exclude unmarried couples from the right to claim an interest in the matrimonial assets on the basis of contribution to the relationship.

A direct link between the contribution and the property is essential for a constructive trust to arise, whether the situation be commercial or family. Unjust enrichment cases need not be categorized as commercial and family; no special rule exists for family cases. Clarity and doctrinal integrity mandate that the basic principles governing the rights and remedies for unjust enrichment remain the same for all cases. Even in a family situation, dispensing with the link between the services rendered and the property claimed to be subject to the trust would be inconsistent with the proprietary nature of the constructive trust. Insufficiency of a monetary award in a family situation, however, is usually linked to the fact the claimant's efforts have given him or her a special link to the property and give rise to a constructive trust. Although a minor or indirect contribution is insufficient to give rise to a constructive trust, the amount of the contribution governs the extent of the constructive trust once the threshold amount is met.

In assessing the value of a constructive trust, the "value survived" approach (the amount by which the property has been improved) is preferable to the "value received" approach (the value of the services which the claimant has rendered). Where the claim is for an interest in the property, the portion of the value of the property claimed and attributable to the claimant's services must be determined. The practical difficulty of calculating with mathematical precision the value of particular contributions to the family property favours a "value survived" approach....

...Per L'Heureux‑Dubé, Gonthier and Cory JJ.: An unjust enrichment requires an enrichment, a corresponding deprivation by the person who supplied the enrichment, and an absence of any juristic reason for the enrichment itself. Given an enrichment, it almost invariably follows that there is a corresponding deprivation suffered by the person who provided the enrichment. In a marriage or a long-term relationship, it should be taken, absent cogent evidence to the contrary, that the enrichment of one party will result in a deprivation to the other.

The constructive trust remedy may be applied where a spouse, including common law spouse, has contributed to the preservation, maintenance or improvement of property but not directly to its acquisition. Respondent here conceded being enriched by appellant's work and contributions.

A person cannot be expected to forego compensation or an interest in the property in return for contributions made merely because that person loved the other person in the relationship. There need not be any evidence of a promise to marry or to compensate. "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.

In a family relationship, the contribution need not be directly linked to a specific property in order to permit the imposition of a constructive trust. This remedy need not be as rigorously limited in a family situation as it is in a commercial context because the expectations of the parties in the two situations are very different. 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. The grant of a constructive trust may be inappropriate, however, where the rights of bona fide third parties would be affected.

In a quasi‑marital relationship where the rights of third parties are not involved, the choice between a monetary award and a constructive trust will be discretionary and should be exercised flexibly. The decision as to which property (if there is more than one) should be made the subject of a constructive trust is also a discretionary one. It too should be based on common sense and a desire to achieve a fair result for both parties.

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.

Two methods can be used to evaluate the contribution of a party in a relationship: value received (the amount the defendant would have had to pay for the services on a purely business basis) and value surviving (a portion of the assets accumulated by the couple on the basis of the contributions made by each). Although value surviving has been traditionally employed in cases of constructive trust, the value received approach can be used to quantify the value of the constructive trust. The remedy should be flexible.

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.

Here, the imposition of a constructive trust was the more appropriate remedy because a monetary award would be impracticable since respondent was retired and living on a War Veteran's Allowance.



lv
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Old 03-31-2007, 05:51 PM
workingthruit workingthruit is offline
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Our lawyer advised that my SO's ex would unsuccessful on her unjust enrichment claim ... VERY similar circumstances.

First at Case Conference, and then at Settlement Conference the judge STRONGLY agreed. In fact, at Settlement Conference, he looked at her claim and said "I thought I told you to remove this claim, you have no right to be making it."

I imagine that's a common response, as everything I have ever read has indicated unjust enrichment claims are a long shot at best.

Good luck!
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Old 04-02-2007, 11:26 AM
myrivers myrivers is offline
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Default Enrichment

VV or others...could someone put these terms into lay-mans words please

"An action for unjust enrichment arises when three elements are satisfied:
(1) an enrichment; (2) a corresponding deprivation; and (3) the absence of a juristic reason for the enrichment. These proven, the action is established and the right to claim relief made out. "

I can't see how a court would rule in my ex favour where in my opinion she was enriched by me in not having any financial expenses, recevied MAD money from me every pay day and had all her material needs met plus being covered on my employers benefit plan (drug, dental, glasses). She benefited from my work abilities, skills and earnings.

It doesn't make sense of one partner who has received so much still think they have a right to the property (house). Especailly when in todays world both parents need to be working to provide a good standard of living.

thanks
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Old 04-03-2007, 07:30 AM
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Default MyRivers

As unfair as it seems or "is" to you and any one else, the family courts don't look at it that way.
They see a "poor weak woman" who "needs" to be cared for by a man. She was cared for during the relationship and enjoyed a certain standard of living in the home. Once the relationship dissolved, the court feels she should still maintain that standard, and if she is not in the home then she somehow is entitled to a portion of the assets of that home. Family law is NOT fare, especially if you have testicles instead of breasts.
By providing for her to the extent you did without a written agreement should the relationship end, you unknowingly caused this. And although she does not have the same 50/50 rights of a married couple, this is the "back door" (so to say) way for her to get a portion of any equity that may have incurred in the home since she began cohabitation.
You could however look into what the home would have been worth at the time of her moving in, then how much it is now. This would limit the amount of equity she could claim unjust enrichment on, if that makes any difference. I know it still doesn't sound fair, but limiting the equity is better than leaving it open for her to claim the total equity since it's purchase. Just something to think about
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Old 04-03-2007, 02:42 PM
Denisem Denisem is offline
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Default just remember

This can work both ways....man or woman. Whom ever has the need and whom ever the means.I don't think it has anything to do with testicles.
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Old 04-04-2007, 07:37 AM
myrivers myrivers is offline
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Default Assests

DeniseM, yes I agree I have the 'means' and my Ex has the 'need' . Paying SS for a short term until a person gets themselfs back on there feet is ok. But going after assests with a 'I deserve a portion' attitutude is my issue.
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Old 04-04-2007, 08:31 AM
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myrivers,

That was the point I was implying, that this was an "I deserve" situation, nothing more and that the system plays into this.

Denisem

I am sorry to have offended you, I have been on both sides of that fence, and have seen an ex husband become vindictive, and I’ve seen an ex wife mutilate the system. When it comes to "some" people rationality does not factor. They are hurt and "want" and may not "need". Just to be spiteful.
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Old 04-04-2007, 03:00 PM
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Smile I agree

When people get greedy they will go to great lengths to cause damage to the other person. No offence taken
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