Unjust Enrichment

An Article by Len Fishman

(NOTE: This article was written for a Law Society of Manitoba 
Continuing Legal Education Seminar on March 5, 1996
 and has not been updated)

(Table of Contents)

G. Some Practical Issues To Consider In A Family Law Case

1. Pleading The Case

Usually the parties simply make a request in the petition which is filed, although it is open to use a statement of claim. Clearly, there must be a claim made in the pleadings. From a practical point of view it would seem preferable that the issue of unjust enrichment should be determined before the accounting is undertaken.

2. Some Questions and Issues:

This following is a listing of some of the issues. It is by no means exhaustive and answers to these questions will not necessarily lead to a particular result. It should however provide a starting point for the discussion and preparation of the case.

• Was the relationship designed to be of unlimited duration? 

• Did the parties ever discuss marriage? 

• Would anyone not familiar with the legalities have assumed they were married?

• Do either have children, or are there children of the union?

• Were their lives fully integrated with each other's? How did the parties share assets and income? Did they maintain separate accounts or did they pool?

• What was their experience with others or each other? Have either been married and divorced or separated? Has either had experience in property disputes?

• Is there a contract of some kind; express or implied?

• What was the bargain respecting roles assumed during the relationship: financial; parental; homecare; outside work?

• Was there a sacrifice of outside earning capacity? Was there a career loss? Was there a career gain?

• Did the plaintiff owe the defendant some obligation to perform services? Did the defendant induce the plaintiff to act to her detriment and for his benefit?

• Were expectations about reward or compensation ever articulated by either party? Was there an implied acknowledgment of compensation, in one form or another, to be forthcoming?

• What compensation was received? 

• What benefits were enjoyed?

• Was the benefit a gift? Was there a reason for the gift?

• Did they talk about ownership issues respecting any particular asset?

• Was there a juristic reason for the property to belong to one as opposed to the other, or jointly? 

• Is there public policy for the enrichment?

• What are the surviving assets? What is the value of each parties' net gain at the end of the relationship? What relationship is there to the value provided and the value resulting?

• Was there equality of bargaining power or was there a high degree of vulnerability to indecent behavior by the other? 

• Is there a fiduciary duty of any kind between them?

• What is the link between the benefit conferred and the property acquired? Does either party have a special connection to the property? Is there a need to make a property award for other reasons? Will either suffer a hardship by not having the proprietary result?

• Will money damages achieve a fair result? Can the defendant pay a damage award? 

• How would you calculate or prove the value of the services provided? 

• Is there an objective model or precedent for valuation of the benefit conferred?