Examples of completed verified answers - Canada
Example 1
Question
What legal remedies are available to a common law spouse to claim an interest in a property solely registered in the other partner's name upon separation?
Verified Answer
In Ontario, a common law spouse does not have an automatic right to an interest in property solely registered in the other partner's name upon separation. However, there are several equitable remedies and legal principles that may allow a common law spouse to claim an interest in such property:
1. Constructive Trust (Unjust Enrichment)
A common law spouse may claim a beneficial interest in the property through a constructive trust if they can establish unjust enrichment. The Supreme Court of Canada in Kerr v. Baranow 2011 SCC 10, set out the test for unjust enrichment, which requires the claimant to prove:
that the person received a benefit,
that the other person suffered a loss corresponding in some way to the benefit, and
that there is no juristic reason for the benefit and the loss.
If these elements are met, and there is a clear link between the claimant’s contributions and the property, the court may impose a constructive trust, granting the claimant a proportionate interest in the property.
2. Resulting Trust
A resulting trust may arise where the common law spouse contributed directly to the purchase price of the property, but the property is registered solely in the other partner’s name. It may also arise when a party transfers the property to the other party without any consideration. The court may infer that the parties intended the contributing spouse to have a beneficial interest in the property, proportionate to their contribution.
The Supreme Court established the presumption of a resulting trust in Pecore v. Pecore 2007 SCC 17. This means it is the recipient’s burden to rebut the presumption by proving, on the balance of probabilities, that the other party intended to make a gift.
3. Joint Family Venture
The court may also consider whether the parties were engaged in a "joint family venture" (as discussed in Kerr v. Baranow). If so, and one party is left with a disproportionate share of the assets, the court may order a division of property or compensation.
In Kerr, the Supreme Court of Canada held that a “joint family venture” may form the basis for an unjust enrichment claim. To obtain an award for unjust enrichment arising from a joint family venture, the Applicant must demonstrate that:
A joint family venture existed; and
There was a link between the Applicant’s contribution to the joint family venture and the accumulation of wealth or assets.
Cohabitation Agreement
If the parties entered into a cohabitation agreement, the terms of that agreement will govern property division. Such agreements can specify how property is to be divided upon separation.
Key Considerations
The Family Law Act’s property equalization regime does not apply to common law spouses; property remains with the person in whose name it is registered unless a trust or unjust enrichment claim is established.
Claims are highly fact-specific and require evidence of contributions and the parties’ intentions.
There are limitation periods for bringing such claims (generally two years from the date of separation but can be extended to ten years in certain situations).
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Example 2 - Canada
Question
What legal remedies are available to a common law spouse to claim an interest in a property solely registered in the other partner's name upon separation?
Verified Answer
In Ontario, a common law spouse does not have an automatic right to an interest in property solely registered in the other partner's name upon separation. However, there are several equitable remedies and legal principles that may allow a common law spouse to claim an interest in such property:
1. Constructive Trust (Unjust Enrichment)
A common law spouse may claim a beneficial interest in the property through a constructive trust if they can establish unjust enrichment. The Supreme Court of Canada in Kerr v. Baranow 2011 SCC 10, set out the test for unjust enrichment, which requires the claimant to prove:
- that the person received a benefit,
- that the other person suffered a loss corresponding in some way to the benefit, and
- that there is no juristic reason for the benefit and the loss.
If these elements are met, and there is a clear link between the claimant’s contributions and the property, the court may impose a constructive trust, granting the claimant a proportionate interest in the property.
2. Resulting Trust
A resulting trust may arise where the common law spouse contributed directly to the purchase price of the property, but the property is registered solely in the other partner’s name. It may also arise when a party transfers the property to the other party without any consideration. The court may infer that the parties intended the contributing spouse to have a beneficial interest in the property, proportionate to their contribution.
The Supreme Court established the presumption of a resulting trust in Pecore v. Pecore 2007 SCC 17. This means it is the recipient’s burden to rebut the presumption by proving, on the balance of probabilities, that the other party intended to make a gift.
3. Joint Family Venture
The court may also consider whether the parties were engaged in a "joint family venture" (as discussed in Kerr v. Baranow). If so, and one party is left with a disproportionate share of the assets, the court may order a division of property or compensation.
In Kerr, the Supreme Court of Canada held that a “joint family venture” may form the basis for an unjust enrichment claim. To obtain an award for unjust enrichment arising from a joint family venture, the Applicant must demonstrate that:
- A joint family venture existed; and
- There was a link between the Applicant’s contribution to the joint family venture and the accumulation of wealth or assets.
- Cohabitation Agreement
If the parties entered into a cohabitation agreement, the terms of that agreement will govern property division. Such agreements can specify how property is to be divided upon separation.
Key Considerations
- The Family Law Act’s property equalization regime does not apply to common law spouses; property remains with the person in whose name it is registered unless a trust or unjust enrichment claim is established.
- Claims are highly fact-specific and require evidence of contributions and the parties’ intentions.
- There are limitation periods for bringing such claims (generally two years from the date of separation but can be extended to ten years in certain situations).
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Example 3
Question
What is the procedure to request the court to anonymize a case by using initials to protect a child's privacy?
Verified Answer
To request the court to anonymize a case by using initials to protect a child's privacy in Ontario, the following procedure is generally followed:
- Understand the Legal Framework: Ontario courts operate under the principle of open justice, but exceptions are made to protect the privacy of children involved in legal proceedings.
- Prepare and File a Motion: You must file a motion with the court requesting permission to use initials or pseudonyms instead of the child's full name. The motion should clearly set out the reasons for the request, focusing on the need to protect the child's privacy.
- Provide Supporting Evidence: The motion should include evidence demonstrating that revealing the child's identity would pose a serious risk to their privacy or well-being. The court will require compelling reasons to depart from the open court principle.
- Court Consideration: The court will assess whether anonymization is necessary and whether less restrictive alternatives are available. The best interests of the child are a primary consideration. See the reasoning of J. Akbarali in A.P. v. L.K., 2019 ONSC 4010 which specifically recognizes children as a vulnerable group that can be exposed to trauma or harm by the litigation itself. This case and reasoning were also referenced in the recent case Churchill v. Elliott, 2025 ONSC 702.
- Alternative Dispute Resolution: If privacy is a significant concern, consider mediation or arbitration, which are private processes and may better protect sensitive information.
- Consent If Possible: It is advisable to investigate whether consent from the other party or their counsel can be secured when seeking this Order.
By following these steps, you can formally request the court to anonymize the case using initials, thereby safeguarding the child's privacy throughout the proceedings.
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