THE DEVELOPMENT OF THE REMEDIAL CONSTRUCTIVE TRUST

Abstract

This article surveys the development of the constructive trust as an equitable remedy in Canada, by highlighting the sources, strengths and criticisms of the English and American positions and locating the Canadian position between them. Canadian courts tend to follow the English tradition, which views the constructive trust as a substantive concept, but they also adopt the American “remedial device” characterization. The author surveys the use of this remedial device to frustrate fraudulent and unconscionable conduct, particularly in matrimonial property cases. He concludes that extending the scope of unjust enrichment will prove beneficial when dealing with distribution of property in matrimonial cases.