RELATIONSHIPS TANTAMOUNT TO SPOUSAL UNJUST ENRICHMENT, AND CONSTRUCTIVE TRUSTS
AbstractIt is now over a decade since the Supreme Court of Canada brought the tools of unjust enrichment, as a cause of action, and the constructive trust, as a remedy, into play, in attempting to obtain a more just distribution of wealth accumulated during a marital, or marriage-like, relationship. The apparent power of these tools to cut through theoretical difficulties in the path of ordering a transfer of wealth seemingly belonging to one party, to the other party, made their employment for this purpose attractive. However, the courts have not paused to elaborate how they are solving some problems which unjust enrichment theory appears to raise, where the plaintiff is relying upon the supply of services to the other party to the relationship, or to dependants, as an indirect contribution to the wealth of the defendant. This article argues that the courts are evolving and employing evidentiary presumptions, borrowed by analogy from the classical resulting trust, to overcome theoretical difficulties in finding that a defendant has been unjustly enriched by receipt of the benefit of services, and that the courts are justified in so doing. It also suggests an approach to aid in quantifying unjust enrichment in this type of situation. However, it argues that the courts have yet to explain adequately the basis upon which they will award a proprietary remedy, or the criteria which they are employing in selecting particular property, out of all of the property of a defendant, as the corpus of a constructive trust, where the plaintiff relies on services to the defendant to establish the cause of action.
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