Quebec public lawyers forced back to work
from personal liability
SCC sets out framework for unjust enrichment claims in family law
CRISTIN SCHMITZ OTTAWA
The Supreme Court has issued
a new roadmap for navigating
property disputes between
unmarried domestic partners,
including scrapping as “
doctrinally unsound” the “common
intention” resulting trust it recognized 36 years ago.
Justice Thomas Cromwell’s
7-0 judgment, in companion
cases from British Columbia and
Ontario, clarifies and updates the
analytical framework for decid-
ing unjust enrichment claims in
domestic property cases, while at
the same time tracing (and argu-
ably putting some new glosses
on) the top court’s decisions on
the property disputes of com-
mon-law couples dating back to
Pettkus v. Becker,  S.C.J.
No. 103 .
Among other things, Kerr v.
Baranow and Vanasse v. Seguin
settle: conflicting case law from
the West and Ontario on how to
quantify unjust enrichment mon-
etary awards; how jurists analyz-
ing unjust enrichment claims by
common-law spouses should take
account of the mutual benefits
partners confer on each other;
and the role that the parties’
intentions and expectations play
in the unjust enrichment analysis.
The “must-read” judgment
offers convenient “one-stop shopping” for lawyers bringing, or
defending, domestic unjust
Geoffrey Gomery of Vancouver’s Nathanson,
ment is clearly
intended as a primer for trial
lawyers and trial judges,” he told
The Lawyers Weekly. “And it is
significant that the Supreme
Court has definitively stated that
the common intention resulting
trust is no more.”
(Such resulting trusts required
proof that the ex-partners com-
monly intended that the property
legally owned by one spouse was
to be shared by both.)
Gomery, who was co-counsel
with Armand Petronio for the
appellant Margaret Kerr of B.C.,
noted that the judgment packs an
See Kerr Page 27
THE LAWYERS WEEKLY
VOL. 22, NO. 27 NEWS FOR THE LEGAL PROFESSION DECEMBER 6, 2002
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