An Old Problem
In 2002, the Supreme Court in Walsh v. Bona ruled that it was not discriminatory for the Nova Scotia Matrimonial Property Act to exclude common law couples from the definition of “spouse” for the purpose of property division.
Speaking for the Majority, Bastarache J. states [at 55] :
In my view, people who marry can be said to freely accept mutual rights and obligations. A decision not to marry should be respected because it also stems from a conscious choice of the parties.
For those couples who have not made arrangements regarding their property at the outset of their relationship, the law of constructive trust remains available to address inequities that may arise at the time of the dissolution.
Dissenting, Justice L’Heureux‑Dubé responds [at 166]:
While I fully endorse and applaud this Court’s attempts to make the unjust enrichment doctrine more accessible to litigants, I am the first to acknowledge the limitations inherent in seeking out a remedy under this head of obligation. In the first place, the principles relating to the proper remedy to grant are complex and uncertain. For a constructive trust to arise, the claimant must show a direct link between the property and the services rendered: Peter, supra, at p. 997. This concept can lead to fairly uncertain results.
For instance it is fairly difficult to establish the quantum of one’s trust entitlement. Measuring the value of household services, domestic chores, and other such intangibles, is no easy task. It is also highly unpredictable. … Counsel must find it difficult to advise their client regarding what they can expect from an application for a remedy under unjust enrichment. The uncertainty makes negotiated settlements much more difficult to achieve. To have recourse to the courts is prohibitively costly. …
20 Years later
Since then, a number of significant changes occurred through the same court, extending rights (Reference re Same-Sex Marriage), clarifying “value survived” over “value received” (Vanesse v. Seguin), and broadening claims (Kerr v Baranow). A fair number of provinces have already adopted legislation that includes “non-married” cohabiting couples in the property regime afforded to married couples. One of those provinces is British Columbia, adopting its revised Family Law Act in 2013.
Yet Ontario law maintains the same foundation stated by Bastarache J. above, relying on the heavily discretionary determinations of resulting trusts and unjust enrichment, including claims that a relationship (or a portion of one) falls in the category of “joint family venture”.
As family law professionals will readily acknowledge, these claims are:
- a bane to lawyers trying to provide clients any certainty of result
- the source of lengthy, expensive court proceedings, highly reliant on credibility findings – which seriously impacts access to justice
- often raised more as wedges for negotiations than substantive merit, and often with little evidence
- made capriciously at the outset of litigation, to simply avoid the prejudice of seeking future amendments, or just because they can be made
- continuously expanding, with legislative licence from the Ontario Family Law Act ss 10 and 14 – into the equalization calculation, at both valuation date and date of marriage (Lesko v Lesko)
In a July 2022 news article, Attorney General Doug Downey’s office responded to a question on legislation reform akin to B.C., saying:
[The current Ontario law] reflects the reality that common law relationships vary widely, and are entered into in a wide range of circumstances.
So who’s right?
- Should we continue using trust principles for cohabiting property claims, and just do it better?
- Or should we adopt all or parts of the BC model? Do we even know what we’d be signing up for?
This CPD Program
This CPD program will provide a concentrated focus to understand the nuances of the BC law for unmarried cohabitants, and seriously reflect on the state of our current Ontario law, to answer these questions:
- Do we really want to adopt the BC laws? How do the BC laws work, and, after 10 years in practice, what’s not working?
- Is there a better way to resolve our Ontario “trust” claims? How should we prepare the case (and client) for pursuing and defending these claims? How do we approach settling them?
- Date: Friday July 21, 2023 @ 12:00 p.m. – 2:00 p.m. EST
- Format: Zoom
- Registration Fee: $125 per registrant, 10% discount where 3 or more registrants
- Created for: Family Law lawyers, mediators/arbitrators, judges, articling/LPP students and policymakers
- CPD: Eligible for 2.0 hours of LSO Substantive CPD credits.
- Recording: A recording of the session will be provided to registrants.
- Materials: Summary materials and a transcript will be provided
Virginia K Richards is a partner at Clark Wilson LLP, practicing exclusively in Family Law. With over a decade of experience in family law litigation, Virginia’s clients benefit from her analytical and strategic approach to their files. They appreciate her zealous advocacy both in and outside the courtroom, her adaptability and agility in responding to rapidly evolving situations, along with her ability to anticipate potential issues with the file or from the opposing party.
Erez Aloni is an associate professor at the Peter A. Allard School of Law. His primary research interests lie in the legal regulation of adult relationships and complex family structures. His work stages the family as an institution affected by a broad range of laws, norms, and economic structures; he is particularly interested in the distributional results of legal regulation of the household and in the intersection of private law with family law. He recently completed a study on Why BC’s rules on common law marriage need reform as well as becoming a recipient of the UBC 2022 Faculty Research Awards, which recognize research excellence and scholarly achievements. He is co-editor of House Rules: Changing Families, Evolving Norms, and the Role of the Law (UBC Press, 2022), a book that critically explores the intertwining of norms and laws that govern familial relationships.
Cheryl Williams is principal at Williams Family Lawyers. Working exclusively in family law for over 22 years, Cheryl has gained a reputation as a highly-respected, skilled, tough, but resolution-based family lawyer, whether she is negotiating marriage and cohabitation agreements, resolving divorce and separation cases through Collaborative Law, Mediation, Arbitration, or when necessary, lengthy court Trials to the Court of Appeal. To her clients, she is known as calming, and compassionate, yet straightforward and efficient. Cheryl takes great pride in having closely worked with and mirroring the principles and work ethics of three family law lawyers who were subsequently appointed as judges of the Superior Court of Justice, Family Court Branch, including her former business partner, The Honourable Laura E. Fryer. With these skills, she successfully protects clients’ rights.
Brahm Siegel is a senior partner at Nathens, Siegel, LLP and Certified as a Specialist in Family Law by the Law Society since 2008. Brahm co-authored McLeod’s Ontario Family Law Rules Annotated, sections of the Bar materials on family law and is the consulting editor of Thomson Carswell’s Consolidated Ontario Family Law Statutes and Regulations. Brahm was a Dispute Resolution Officer in the Superior Court of Justice for five years and Brahm is a certified Family Mediator with OAFM and as an arbitrator with FDRIO. He has a busy mediation/arbitration practice assisting lawyers and clients resolving divorce disputes. He has also completed a Certificate in International Cross Border Mediation which allows him to service parents whose children have been wrongfully removed from, or wrongfully retained in, Canada. Brahm releases daily court summaries through Siegel’s Family Court Calendar.
Shmuel Stern, family law lawyer and founder of Disclosure Clinic, a limited scope service assisting litigants, lawyers, and mediators confronted with all issues touching family law financial disclosure. Shmuel also runs the @corollaryrelief Twitter feed and more recently is website editor of courtnoticefinder.ca.