I begin with the observation that Canadian courts have relied on common law concepts of unjust enrichment and constructive trust in order to provide a legal remedy where property divisions in family law cases based solely on legal title would be manifestly unfair. However, as Cromwell J. observed in Kerr v. Baranow, by the 1980’s provincial legislatures had put in place comprehensive matrimonial property statutes governing property and financial issues on marriage breakdown. Unmarried persons in domestic relationships were required to continue to look to the common law in order to address situations where one person’s contributions to the acquisition of property were not reflected in legal title. But that was no longer the case for married spouses, who were expected to resolve financial and property issues on the basis of the applicable legislative scheme as opposed to the common law.
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