Separation and Divorce - Toronto Family Lawyer - Howard NightingaleTo all my current and potential clients currently living in, or thinking about, a common law relationship, this blog is mandatory reading. First, let me introduce you to a recent Supreme Court of Canada judgment (February, 2011), based on two cases, Kerr v. Baranow from B.C. and Vanasse v. Seguin, here in Ontario.

After living together for 25 years, Ms. Kerr and Mr. Baranow, both in their late sixties, separated; a common-law separation. So, yes, dissolution happens just as it does in marriage, even after a quarter of a century of co-habitation. In the second case, Ms. Vanesse and Mr. Seguin parted ways after twelve years; also a common-law separation; in their case, however, children were involved.

Clearly, no one is immune to ‘relationship fallout,’ and so, as with all affairs of the human heart, we wish for the best while learning how to proceed if circumstances prove to be less than what we had hoped for. It’s unlikely that these couples thought their conflicts would eventually involve such legal complexities as support, property and what are termed “trust and unjust enrichment” principles, eventually ending up in the Supreme Court of Canada where they set legal precedence for Canadian jurisprudence, trial judges, and common-law relationships in general.

Supreme Court redefines settlement terms for common-law separation

A significant outcome of the Supremes Court’s judgment concerns changes in the way courts will now view property and monetary consideration. Whereas division of property in common law relationships was formerly based on what is termed a “quantum meruit basis,” it will now be considered on the basis of “co-venturer.” (

Simply put, financial consideration was previously decided according to a contractual basis, as if the person making the smaller financial contribution, usually the woman, was a paid employee of the male (or the partner making the greater financial contribution). As a result of the Supreme’s decision, however, family law in Ontario as applied to common-law relationships of more than several years will view each partner is a co-contributor. As well, these contributions to the union are now much more inclusive and broad than the previous single focus on monetary matters.

Unjust Enrichment

In the case of both Ms. Kerr and Ms. Vanesse, the ruling affirmed that their non-monetary contributions to the relationship had enriched their partners and that it would be unjust to deprive them of an appropriate share in the accumulated assets. Thus Ms. Kerr was awarded financial support and a significantly greater portion of the accumulated resources (1/3 of the property) than the original offer provided for. This was especially the case for Ms. Vanesse who gave up her career to stay home and raise the couple’s two children, thereby making possible Mr. Seguin’s corporate success. To quote from the findings of the Supreme Court:

The length of the relationship is also relevant, and their 12-year cohabitation is a significant period of time. There was also evidence of economic integration as their house was registered jointly and they had a joint bank account. Their words and actions indicated that there was a joint family venture, to which the couple jointly contributed for their mutual benefit and the benefit of their children. V [Ms. Vanesse] left her career, gave up her own income, and moved away from her family and friends. V then stayed home and cared for their two small children. During the period of the unjust enrichment, V was responsible for a disproportionate share of the domestic labour. There was a clear link between V’s contribution and the accumulation of wealth


Child Support considerations in common-law separation

In addition, whereas both women asked for monthly financial support and a share of the property, Ms. Vanesse also asked for and received child support for the couple’s two children. Because they had previously agreed to joint or shared custody, father’s rights wasn’t an issue here. But clearly, family law and child support is now part of the dialogue for common-law families ending a relationship, and the relationship of common-law couples reflects what might be termed more modern sensibilities in which judges can define and review the contributions of both partners to the enterprise on an equal footing.

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