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Child Support Extraordinary Expenses

Peter Graburn, senior Calgary Alberta Joint Family Venture lawyer at MacLean Law, gets you off to a great start in the New Year if you are a common law spouse who is deciding to separate.

COMMON – LAW PROPERTY DIVISION IN ALBERTA – Unjust Enrichment and Joint Family Venture Lawyers can be reached immediately at  403 444 5503

In numerous previous posts on Calgary matrimonial property division, I have discussed the different ways married and “common-law” couples in Alberta divide their jointly acquired property upon separation. Married couples divide their property according to the Matrimonial Property Act (MPA) unless they have previously signed a prenuptial or separation agreement that determines how they will divide their matrimonial property.  Generally (ie. under the MPA), jointly acquired property for married couples is divided equitably (or equally) upon separation.

Calgary Alberta Joint Family Venture lawyers
Calgary Alberta Joint Family Venture Lawyers Call us today at 403-444-5503

Calgary Alberta Joint Family Venture Common Law Property Lawyers 403 444 5503

However, for common-law couples (legally called “Adult Interdependent Partners”, or AIPs) in Alberta, property division upon separation is not so easy as the MPA does not currently apply to them. Accordingly, common-law couples in Alberta must currently look to the legal concepts of constructive trust, unjust enrichment and joint family venture to determine how their joint property will be divided upon separation if they cannot agree. That is where a savvy and experienced Calgary Alberta Joint Family Venture lawyer can assist you in getting your fair share.

Calgary Alberta Joint Family Venture Common Law Property Lawyers 403 444 5503

But what are these principles of constructive trust, unjust enrichment and joint family venture?  While some of these concepts have existed in family law for a while, these principles were clarified by the Supreme Court of Canada in the 2011 landmark case of Kerr v. Baranow  (2011 SCC 10) where the Court determined that for someone to successfully claim that their common-law relationship (where each contributed to the relationship in various ways and to different degrees) resulted in an interest in the property of the other person, the claimant must prove:

● The recipient received a benefit / enrichment;

● The claimant suffered a corresponding loss /detriment to the benefit received by the recipient;

● There was no juristic (ie. other legal) reason / explanation for the loss/detriment and the benefit/ enrichment.

The Court went on to hold that where an unjust enrichment claim has been proven (based on the above three elements), compensation could take the form of a constructive trust interest in the specific property of the other person or (if a trust interest was not appropriate) a monetary award. The Court (principally Justice Thomas Cromwell) also went on to introduce the concept of a joint family venture, where the respective contributions of an unmarried couple could be seen to be creating wealth together (similar to a marriage) if they can establish:

Mutual Effort – ie. working collaboratively toward common goals;

Economic Integration – extensive integration of finances, economic interests and economic well-being;

Actual Intent – intent (express or implied) to act as a family unit, and; 

Priority of the family – ie. whether they have children together and roles played in supporting the family.

While Kerr v. Baranow laid out the broad legal principles for unjust enrichment, constructive trust and joint family venture, it has been left to subsequent lower Courts to apply these principles to actual common-law relationships in Alberta. Calgary Alberta Joint Family Venture cases have striven to apply the Kerr principles and led to impetus for change in the laws of Alberta.

Calgary Alberta Joint Family Venture Common Law Property Lawyers 403 444 5503

In the 2015 case of (Thew v Nichol 2015 CarswellAlta 1633), Madame Justice Grekol of the Court of Queen’s Bench of Alberta considered a situation where the couple had lived together for 10 years, raised children (from previous relationships), pooled their resources and household responsibilities, and worked together to build a business and acquire property and assets (held mostly in the name of the man) – in short, acted as though they were married. Justice Grekol found the parties to be engaged in a joint family venture but that a disproportionate share of the family assets were retained by the man, which could be resolved by a payment of money (similar to an equalization payment in a matrimonial property division) from the man to the woman.

By contrast, in the more recent case of Johnson v. Goyette (2018 ABCA 353), the Alberta Court of Appeal dealt with a 13-year common law relationship where by the end of the relationship the parties had acquired (mostly in her name) significant property and interests in other ventures. While she had somewhat greater financial means at the start of the relationship, he was a professional hockey player (having competed in 3 Olympic Games) and his income had increased significantly over time. While they shared most expenses and were involved in each other’s work (hockey), they kept separate bank accounts and credit cards, made separate major purchases, and identified themselves as single on tax returns. The original trial justice found that while the woman had gained a benefit and the man suffered a corresponding deprivation in the joint property and as a result (as there was no juristic reason for this) that unjust enrichment had occurred, no joint family venture was intended or established. The Alberta Court of Appeal upheld this original trial decision, holding that a trial judge’s finding on whether a joint family venture exists is a factual one, and up to the trial judge’s “immeasurable judicial discretion”.

Calgary Alberta Joint Family Venture Common Law Property Lawyers – NEW LAWS COMING?

It has been suggested (at least by one lawyer in the case) that the decision in Johnson v. Goyette finally prompted the Alberta government to extend the matrimonial property rights enjoyed by married couples under the MPA to common-law couples.  Many other provinces had already extended these rights (ie. see British Columbia’s Family Law Act, and Ibbotson v. Fung (2013 BCCA 171), and in 2017, the Alberta Law Reform Institute recommended Alberta do the same. 

On November 21, 2018, the Alberta government introduced Bill 28, The Family Statutes Amendment Act which (among other changes to family law legislation in Alberta) would amend the Matrimonial Property Act to extend the current property division rules applicable to married couples to common-law couples (AIPs) in Alberta.  You can read my blog on this exciting development here,

If passed, these changes would take effect in January 2020, greatly reducing judicial discretion and uncertainty (and increasing fairness to common-law couples) in this area.

Calgary Alberta Joint Family Venture Common Law Property Lawyers 403 444 5503

Calgary Unjust Enrichment and Joint Family Venture Lawyers assist their common-law clients understand the legal principles involved in bringing and winning a constructive trust claim, and also explain and assist with other options (ie. negotiation leading to a separation agreement) to divide jointly acquired property upon relationship break-down. Call Peter Graburn today at 403 444 5503