Legally Speaking – Unjust enrichment: A procedure for common law spouses

Legally Speaking – Unjust enrichment: A procedure for common law spouses


Here is the ninth in a series of legal columns by Quebec law firm  Joli-Cœur Lacasse Avocats.

By Me Albina Mulaomerovic and Me Sophia Claude

Do you know what the unjust enrichment procedure is?

Let us explain what that procedure is by presenting its criteria and objectives as well as a concrete example:

A couple in their forties have separated after having lived together for fifteen years without getting married. From their union, four children were born. At the beginning of their relationship, they both worked. After the arrival of their third child, the couple decided that the mother would stay at home to take care of the children. The mother stayed at home to care for the children up until the couple separated.

During this time, the father launched his own business which then flourished throughout the period of the common law relationship. Since the mother stayed at home and cared for the children and managed the family dwelling, this allowed the father to dedicate a lot of his time and energy towards growing his company.

This situation is similar to an important decision rendered concerning the procedure of the unjust enrichment. In that particular case, the Court of Appeal decided that the mother’s procedure for unjust enrichment was justified and granted the lady compensation (allowance) in the amount of $398,000.

This procedure allows for a common law ex-spouse to claim compensation (allowance) from the ex-partner who enriched himself (herself) at the other partner’s expense. Unjust enrichment can be recognized by proving the following five (5) elements:

1) An enrichment of a common law spouse;

2) An impoverishment of the other common law spouse;

3) A correlation between the enrichment and the impoverishment;

4) An absence of legal justification in that enrichment (or impoverishment); and

5) The absence of any other recourse pertaining to the impoverishment.

You may wonder if it is only in the context of a separation between common law spouses that the procedure for unjust enrichment may be justified? No.

This procedure is used, among others, in family law in order to mitigate different situations. The enrichment can result from a contribution of a different nature provided by one common law spouse during the parties’ cohabitation. The jurisprudence that we have identified for the years 2014 and 2015 recognizes among others:

– Domestic work, such as upkeep of the family dwelling or children’s education (± 8% of cases listed);

– Renovation work done by one common law spouse on the property of the other common law spouse (± 42% of cases listed);

– Financial support provided to a common law spouse (± 17% of cases listed);

– The support provided within the business that belongs to one of the common law spouses (indirectly recognized among other motives); and

– The global notion of family joint venture (± 33% of cases listed).
When calculating the compensation, judges do not require to provide evidence of a rigorous accounting procedure and are generally flexible where unjust enrichment is concerned. Their analysis is liberal and global, taking into account all of the common law spouses’ contributions during their common life shared together.

However, it is important to specify that the objective of this recourse is not to equilibrate assets between parties’ but to compensate a common law spouse for his (her) contribution that allowed to the other common law spouse to enrich himself (herself).

The recourse is interesting and complex where the expertise of an attorney can be useful. In order to know more about this procedure, do not hesitate to communicate with the Joli-Coeur Lacasse family law team lawyers.

Me Sophia Claude and Me Albina Mulaomerovic Joli-Cœur Lacasse Avocats
Me Sophia Claude and Me Albina Mulaomerovic – Joli-Cœur Lacasse Avocates


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Categories: Opinion

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Jolicoeur Lacasse Avocats

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