Under the new changes in the Alberta Family Property Act, property owned by common-law couples is to be divided in the same way as married couples. Before the changes to the Act, parties were required to pursue their property claims through unjust enrichment claims. The principles for unfair enrichment may still be relevant today as these types of claims can still be made for common-law couples. In Alberta, common-law couples are referred to as adult interdependent partners, and some specific criteria and factors determine whether there is an adult interdependent relationship. Otherwise, common-law parties can still rely on unjust enrichment claims towards property.

In this post, we will discuss the unjust enrichment principles and how they can apply to common-law couples upon the relationship breakdown. This post will look at how a party can prove unjust enrichment if they had contributed to property so that they should receive a share of its value at separation. We will examine a case example, Tooktoshina v Kelly, 2023 ABKB 216, in which the court found that an unjust enrichment applied to a common-law couple. The court found that the mother had contributed to the parties’ property and was entitled to a share of the property’s value. This post will provide important takeaways for common-law parties seeking to understand how property division can apply in their case.

What is unjust enrichment?

Unjust enrichment is a type of claim that can be made by parties to a common-law relationship. It is usually made in the context of dividing property that is held by either or both parties. As the previous legislation did not cover property division for common-law couples, unjust enrichment was a common-law remedy available to unmarried couples upon the breakdown of their relationship. In an unjust enrichment claim, the court assesses whether a party contributed to property held by the parties or one of the parties. As a result of this contribution, it benefited the other party to the contributor’s detriment. In other words, one party benefitted while the other experienced a loss or disadvantage due to their contribution. Therefore, unjust enrichment claims arose to address the unfairness of this type of arrangement by allowing the contributor a share in the value of the property.

What are the factors for finding unjust enrichment in a common-law relationship?

The following three elements must be established to find that there was an unjust enrichment:

1.     An enrichment or benefit gained by the defendant from the plaintiff;

2.     A corresponding loss or deprivation experienced by the plaintiff as a result of their contribution;

3.     No juristic reason (i.e. other court-approved reason) for the enrichment that would make it fair to the parties.

There must be evidence that the plaintiff provided something to the defendant to determine that the first two elements are satisfied. The defendant must have received the benefit from the plaintiff. The contribution, especially in common-law relationships, does not need to be monetary. For example, it is quite common for common-law partners to play different roles in the household. One party may be more focused on providing financial support to the relationship. At the same time, the other may be more involved in managing the household and caring for the children, if any. The benefit provided can also involve relieving the defendant of some sort of expense. However, it is important to note that the benefit must be tangible.

Then, the plaintiff must prove that they also suffered a loss arising from the benefit to the defendant. The loss must be shown to be material. In other words, it must have had a real impact on the plaintiff, such as a monetary loss or loss of opportunities, such as in building their career.

In the context of a common-law relationship, it is common for the contribution claimed to be one of domestic services rather than financial contribution. Generally, there is no duty for a spouse or domestic partner to perform work or services for the other, including domestic services. The court has recognized that domestic services are significant to the family and the other spouse. As the plaintiff is generally not compensated for their labour in the form of domestic services, this can be considered a deprivation or loss.

Domestic services can include housework, taking care of the children, and any other tasks that contribute to maintaining the family property or contributing to the day-to-day functioning of the family unit.

Lastly, the court will assess whether there was a juristic reason to deny the unjust enrichment claim. The court will consider all the circumstances, such as the parties’ reasonable expectations and public policy considerations.

Alberta Court Finds Unjust Enrichment Applies in Recent Case

In the Tooktoshina case, the parties began their adult interdependent relationship in 2004 and separated in 2019. During their relationship, they had two children together. The parties jointly owned a family home and cabin at separation, and the husband received a pension.

Due to unjust enrichment, the mother claimed she was entitled to an equal share of the property, including the family home and cabin. At trial, the father claimed the total value of the family home, 80 percent of the cabin, and an exemption from dividing his pension.

The court found that the parties agreed for the father to be the primary financial provider because the mother suffered from a disability, which worsened after her two pregnancies. After the children were born, the mother cared for the household and the children, including making meals and cleaning the home. After purchasing the cabin, the mother also took on the role of maintaining and renovating the cabin.

The father claimed that the mother only did the household chores necessary for herself, such as cooking for herself and not the children, and only cleaning the parts of the house that she needed to be clean. The court found that the father exaggerated his role in the domestic chores, as he also worked full-time and could not have completed 95 percent of the chores.

The court found that the mother suffered a loss to benefit the father due to her work in the household and caring for the children. The mother was granted 50 per cent of the family property, including a share in the home, cabin, and father’s pension plan.

Key Takeaways

Unjust enrichment claims can still apply to common-law partners. Therefore, it is important to understand how these types of claims operate for the division of property held by either party. In particular, domestic services and the roles played by each party in the relationship can be relevant to a claim of unjust enrichment and, therefore, property division.

Calgary Family Lawyers Assisting Clients with Unjust Enrichment Claims for Property Division

Unjust enrichment principles can still apply to property division for common-law partners. As this is highly specific to the circumstances of the case, you should speak with one of our family law lawyers at Mincher Koeman, who are experienced in assisting parties with issues involving property division. Our Calgary family law lawyers are dedicated to finding the best resolution for you after separation.

To book a consultation, please contact us online or by phone at 403-910-3000.

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