What is the test for a constructive trust remedy in a family law case?

British Columbia, Canada


The following excerpt is from Locman v. Yanyk, 2009 BCSC 786 (CanLII):

In Peter v. Beblow, McLachlin J. made it clear that the remedy of a constructive trust does not automatically flow from a finding of unjust enrichment. She stated, at paras. 25-26: ... Where a monetary award is sufficient, there is no need for a constructive trust. Where a monetary award is insufficient in a family situation, this is usually related to the fact the claimant's efforts have given him or her a special link to the property, in which case a constructive trust arises. I hold the view that in order for a constructive trust to be found, in a family case as in other cases, monetary compensation must be inadequate and there must be a link between the services rendered and the property in which the trust is claimed. Having said this, I echo the comments of Cory J. at p. 1023 that the courts should exercise flexibility and common sense when applying equitable principles to family law issues with due sensitivity to the special circumstances that can arise in such cases.

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