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Unjust Enrichment
An Article by Len Fishman
(This article
was written for a Law Society of Manitoba
Continuing Legal Education Seminar on March 5, 1996)
A. Introduction - The Trust In Family Law
The claim of unjust enrichment and the remedies which might follow success, namely, constructive trust or restitution, is a useful tool for the family lawyer, whether the client is married and separating, or one who is in a "common law" or other kind of relationship which we might call "tantamount to spousal" or "quasi-marital".
The trust has been a useful concept in the family law context over the years and continues to be one. It has often been used, where no legislation existed, to extend the bounds of property sharing on dissolution of the union, leading to legislative reform and, where that has been deficient, to bold strokes of judicial lawmaking.
1. A Brief Historical Perspective
The concept that married women could hold property was crystallized in The Married Women's Property Act in Manitoba and similarly in other provinces. It recognized that a married woman had the same right to own property as an unmarried one and provided a summary remedy for the determination of their interests. That they had individual autonomy over property was of little real economic value to these married women until perhaps a generation ago when, in the post war period, they started en masse to acquire the means or ability to obtain it.
Rapid changes in the law and society in the 1960's and 1970's saw a marked increase in the number of separations, divorces and property settlements. Until the statutes changed in 1980's, men usually held the property and, on marital dissolution, they generally kept it. At best, a wife could hope that her spouse had registered title to the marital home jointly or that she had a viable claim for spousal and child support.
Until the late 1970's, there were no legislative schemes for the redistribution of property or wealth on marriage breakdown. The use of the trust - which manipulates the notion that property divides into legal and equitable ownership - became a versatile tool in family law property actions and it has developed dramatically over the last 30 years with consequent ramifications in other areas of application such as commercial and estate matters.
A cursory look at the recent history of marital property law shows the progression. The resulting trust was the leader of the pack in family property cases. It was employed to assist those who had paid for property that ended up in the other spouse's name. It was of little help to those who could not prove an agreement or joint intention to share.
Outrage that followed the perceived injustice of the celebrated case of Murdoch v. Murdoch, in 1975, led not only to almost wholesale enactment of comprehensive provincial marital property acts, of which Manitoba's was one of the first, but also spurred the Supreme Court of Canada to pattern, in a series of cases some of which we will look at in this paper, a progressively more expansive role for the trust, particularly the constructive trust, and its frequent foundation, the concept of unjust enrichment.
The law of unjust enrichment in the family law case is the intended focus of this paper. In the "tantamount to spousal cases", the parties might be of the same sex, parent and child, or some other interpersonal configuration. The constructive trust, in particular, and the law of unjust enrichment, may provide the only resort for the unmarried, and may also have application for those ostensibly, but not necessarily equitably, covered by the current patchwork of provincial marital property acts.
As you will hear from other presenters, determination of the issue, that there has been unjust enrichment, and the remedy once entitlement is found, restitution or the imposition of a constructive trust, may be different in a family law case than in an estate or commercial case. This remains an important and unresolved question.
The claimant, petitioner or plaintiff as the case may be will usually be the woman and the defendant or respondent the man and are referred to thusly.
