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  • #16
    I live in Oshawa. That's what she's saying. That she raised the value by the painting she did and I owe her for the maintenance she provided by keeping the house tidy. We went to court and I signed an interim agreement and she agreed to pay occupation rent. She hasn't done this so my lawyer told me a case conference was required before I could apply for a motion to vary the order. That's the situation now and I have the date for the case conference. I am asking for a ruling at the case conference in regard to possession for a subsequent motion.

    I'm rooting for you Fri. Good luck. Looks like we both hooked up with a couple dandys

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    • #17
      Do you want to trade, I prefer your case to mine

      Comment


      • #18
        I'll stick with mine but thanks for the offer...lol Have you been to a case or settlement conference yet? Given my situation based on what I've told you, do you think a judge would entertain an award in her favour? Do you think doing some painting and keeping the house tidy as well as buying some food would justify an award considering her son and herself lived for free

        Comment


        • #19
          During mine which is not finish, the judge clearly stated that the house was mine, he has not made a decision on the equity yet. She was to move out on the 15 and I expect the return of my house this weekend. My lawyer has said that what I bought was mine and that it was difficult to prove her side as she has made statement that she did not pay rent, maintenance or any of the big bills. I was to have the house evaluated but she called the police on the evaluator. So I have to go with the evaluation for 2005, and the debt accumulated should bring the equity down. But I did offer $8000 and will not deter from that amount. I have deduction to this amount as she has dammaged the house, taken furniture, and has not pay for running her business in the last year. So in other word I do not think she will get anymore then $4000. The law is strange there is guideline which are not follow by the judge.

          Comment


          • #20
            http://www.ottawadivorce.com/forum/f...ispelled-4160/

            This is a link to a previous post I submitted that should help with some of the issues surrounding CL and entitlement.
            Best of luck

            Comment


            • #21
              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.

              Comment


              • #22
                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.

                Comment


                • #23
                  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.

                  Comment


                  • #24
                    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

                    Comment


                    • #25
                      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?

                      Comment


                      • #26
                        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.

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                        • #27
                          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.

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                          • #28
                            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

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                            • #29
                              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???!!!!

                              Comment


                              • #30
                                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.

                                Comment

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