Cohabitation Agreements and the new Family Law Act:Why you probably want a cohabitation agreement

In a previous post, “Why you DON’T Want a Cohabitation Agreement,” I summarized the law on the division of property between unmarried couples and how s. 120.1 of the Family Relations Act usually made cohabitation agreements a very, very bad idea when the purpose of the agreement was to protect property brought into a relationship. 

That’s all changed as a result of the enactment of the Family Law Act on 24 November 2011. Let me explain.

Property, unmarried couples and the Family Relations Act

Under the Family Relations Act, married spouses are presumed to have a one-half interest in everything that qualifies as a “family asset.” The definition of family asset is so broad, however, that almost everything a married couple has is a family asset whether they bought it after the marriage or brought it into the marriage; most of the time, a married spouse is entitled to half of everything regardless of when and how an asset was acquired.

This isn’t the case for unmarried couples because unmarried couples are expressly excluded from the parts of the Family Relations Act that deal with the division of family assets.

Unmarried couples have no shared interest in any assets except those that they own together. When only one person owns an asset, like the family home, for example, it presumptively remains that person’s sole property, no matter how long the couple lives together.

Unmarried couples, trust claims and unjust enrichment

Of course, after a couple has lived together for five, ten or twenty years, it can seem somewhat unfair that only one of them has an entitlement to the family home, or the family car, or a business or whatever. In a case like this, the person who doesn’t own an asset tries to establish an entitlement by proving the existence of an express trust or a resulting trust, or, more commonly, by proving that the person who owns the asset was unjustly enriched by something the non-owner contributed during the relationship.

All of these claims are difficult to prove, and, even when successful, rarely result in a property interest any where close to the one-half interest the parties would have had if they had been married.

As a result, someone who didn’t want to share the assets being brought into a relationship would simply get some legal advice about how to avoid express and resulting trusts, and make sure that the contributions of the other spouse were always compensated in someway in order to duck an unjust enrichment claim.

Unmarried couples, cohabitation agreements and the Family Relations Act

Despite this rather favourable legal circumstance, people often wanted cohabitation agreements before entering into a long-term, live-in relationship, mostly to address the division of property in the event the relationship ended. Normally, this would be a sensible course of action; wouldn’t it be easier not to have to worry about unintentionally creating a trust relationship or being inadvertently enriched? 

Not so. The problem here lay in a nasty little section of the Family Relations Act, s. 120.1. Under this section, if an unmarried couple made an agreement that dealt with property, the parts of the act that apply to the division of assets between married spouses applied to the unmarried couple making the agreement, and the cohabitation agreement was considered to be a marriage agreement.

This was very bad, for two reasons. First, s. 65(1) of the Family Relations Act expressly allows the court to vary marriage agreements it finds to be unfair. Second, the definition of “fairness” was the presumption of equal entitlement set out in s. 56 of the act which would otherwise have only applied to married spouses.

In a nutshell, as a result of s. 120.1, the standard of property division for married spouses applied to unmarried couples with cohabitation agreements, including certain presumptions about the division of property that would be far worse in effect than what the principles of trust law and unjust enrichment would have yielded in the absence of the cohabitation agreement.

Unmarried couples and the Family Law Act

Under the Family Law Act, unmarried couples that have cohabited for more than two years will have the same property rights as married spouses.

Under the new act, assets brought into a relationship and certain assets acquired afterwards, like court awards and inheritances, will be excluded from division between spouses. The assets that will be divided, and the presumptive division is an equal division, are the assets acquired after the relationship began as well as any increase in the value of the excluded assets.

From the point of view of the person who owns an asset, this is better than the law for married spouses under the Family Relations Act and better than the law for unmarried couples with a cohabitation agreement. However, there can still be some very significant consequences in sharing in the increase in value of an excluded asset — think of what has happened to the value of real estate in the lower mainland over the past 10 years, or the values of stock in Apple, crude oil and your Gretzky rookie card over the same period.

Despite the coming changes in the law, some couples will still want a cohabitation agreement, specifically couples who are in long-term unmarried relationships right now and couples with assets who expect to be in long-term unmarried relationships.

Cohabitation agreements, the repeal of s. 120.1 and the coming-into-force of the Family Law Act

The Family Law Act became law on 24 November 2011. Although most of the act, including all the parts about property division, are not yet in force, other bits came into effect right away, including s. 258 which had the effect of repealing s. 120.1. Fantastic! Since the Attorney General has said that the rest of the Family Law Act isn’t going to come into force for another 12 to 18 months, this means that we’re in the middle of a legislative sweet spot for unmarried couples. 

Unmarried couples may now enter into cohabitation agreements without fear of the grim consequences of s. 120.1, and almost without regard to the property provisions of the Family Relations Act. 

On top of that, unmarried couples probably want to enter into cohabitation agreements if they wish to avoid some or all of the consequences of the property division regime of the new Family Law Act. In other words, if there’s anything about how property will be shared under the new act that browns you off, now is your opportunity to do something about it, and you’ve got 12 to 18 months within which to get it done. 

Get a cohabitation agreement and get it soon

For the next 12 to 18 months, couples across the province will be going through an unpleasant assessment of how their legal rights will fare under the new act. That’s okay, it’s a necessary consequence of change. However, if you are in a relationship of the sort that won’t require you to share your property, that’s going to change too, and if you want to do something about it and don’t want to end your relationship, the time is ripe to get a cohabitation agreement done up.

There will never be a better time to enter into a cohabitation agreement than right now, under the current law and between the repeal of s. 120.1 and the coming-into-force of the property provisions of the new Family Law Act.

Cohabitation agreements are somewhat complicated at the best of times; they’re somewhat more complicated now that we’re in the transition between one legal regime and another. You really must see a lawyer if you want to get a cohabitation agreement drawn up. If you don’t have someone to see, contact the CBA's excellent Lawyer Referral Service at 604-687-3221 or 800-663-1919.

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The Early and Unlamented Deaths of ss. 90 and 120.1:Government takes quick action on parental support and unmarried persons' property agreements

I've had the opportunity to take a more in depth reading of the transitional and repeal provisions of the Family Law Act, largely as a result of some issues brought to my attention by Nate Russell of Courthouse Libraries BC.

The nuts and bolts of the new Family Law Act run from ss. 1 to 244. The government's power to make the host of new regulations the act will require runs from ss. 245 to 249. The transitional provisions — the sections which guide the changes from the old Family Relations Act to the new Family Law Act — are brief and run from ss. 250 to 256. The really dry stuff, about the other laws that will be changed or repealed to accommodate the new act run from s. 257 all the way through to s. 482 and are dreadfully dry reading. This is, however, where you can find the really interesting things which motivated the call from Nate.

At the end of the act, further to s. 482, is a table showing which parts of the act come into force upon the act receiving Royal Assent which will come into force down the road by Order in Council. As readers will recall, the Attorney General has announced that implementation of the act will take 12 to 18 months. However, a close look at the table shows that some parts of the act will come into effect the moment the bill receives Royal Assent, two or three days after it clears Third Reading, and won't need to wait for the eventual Order in Council. (Read my post "The Present Effect of the Proposed Family Law Act" for a brief discussion about how a bill becomes law.) An acquaintance at the Attorney General's office has confirmed that this is indeed the intention behind s. 482.

Apart from some minor housekeeping changing references to "husband and wife" to "spouse," the provisions coming into effect right away will:

• make the Land (Spouse Protection) Act available to unmarried spouses,
• repeal the provisions of the Family Relations Act for parental support (s. 90), and
• repeal other provisions relating to the effect of property agreements between unmarried couples (s. 120.1).

The last point is the most important, I think, although frankly the repeal of parental support is a close runner up. (Read my post "Parental Support in British Columbia" for an explanation of this subject.)
If you go back to my post "Why you DON'T want a cohabitation agreement," you'll see a long explanation about how s. 120.1 made the property rules applicable to married couples applicable to unmarried couples who had the misfortune to make an agreement about property. This meant that cohabitation agreements were usually very bad for the person owning property, as they could produce a far worse result than the worst case result without an agreement.
The repeal of s. 120.1 now means that unmarried couples can go ahead and enter into property agreements now before the rest of the Family Law Act comes into effect without getting caught by the unexpected and frankly counterintuitive consequences of s. 120.1. In other words, unmarried couples can make an agreement now to avoid the property sharing provisions of the new act without worrying about the negative consequences of the old act.
My thanks again to Nate for pointing this out.

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Marriage and the Material Girl/Boy

The LA Times has reported on a study published in the Journal of Couple & Relationship Therapy, "Materialism and Marriage: Couple Profiles of Congruent and Incongruent Spouses," which found that "couples where both spouses are materialistic were worse off on nearly every measure." Says the Times:

"Statistical analysis of the research showed that couples who say money is not important to them score 10% to 15% better on marriage stability and other measures of relationship quality than couples who are openly materialistic.
"The study also found that couples in which only one partner is materialistic fare better than couples in which both partners are materialistic."

Well, they do say that money can't buy happiness, and that's certainly true during a relationship and after its collapse. I see some unusual things as a divorce lawyer, but it's always a surprise when I run into people who are more troubled by the potential damage to their material wealth than the prospect of losing contact with their children; what's not surprising at all is that people with this sort of attitude would have especially fractious marriages.

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Becoming Common-Law

Important Update: The Family Law Act was introduced on 14 November 2011 and contains a number of provisions which are critical to the comments made in this post. See my posts "The Early and Unlamented Deaths of ss. 90 and 120.1: Government takes quick action on parental support and unmarried persons' property agreements" and "Family Law Act Introduced!" for more information.

I was looking at one of the forums which links to my website, and a user had posted a question which reminded me of the prevalence of bad information about common-law relationships: "how do I apply for common-law status?" I think it's time for a refresher.

Being "common-law" is all about qualifying as a spouse as defined by a particular law.

Different laws have different definitions of "spouse."

Under the federal Divorce Act, "spouse" means someone who is or was legally married to someone else; under the Canada Pension Plan, a "common-law partner" means someone who lived in a conjugal relationship with the pension contributor for at least one year.

Under the provincial Family Relations Act, "spouse" is defined as including married people as well as unmarried people who have lived together in a marriage-like relationship for at least two years. Under the Employment and Assistance Act, the law about welfare benefits, "spouse" includes people who have lived together for at least three months if the relationship demonstrates some sort of interdependence.

As a general rule of thumb, most federal laws define "spouse" or "partner" as including unmarried people who have lived together for at least one year and most provincial laws define "spouse" as including unmarried people who have lived together for at least two years.

Qualifying as a spouse may give you benefits and obligations under a particular law.

A "spouse" under the Family Relations Act is entitled to use the act to apply for spousal support (or may be obliged to pay it), and someone who is the "spouse" of a parent may be obliged to pay child support in respect of the parent's children.

A "spouse" under the Wills Variation Act is entitled to use the act to apply to change the distribution of benefits set out in a person's will. A "common law spouse" under the Estate Administration Act is entitled to an automatic share in the estate of someone who dies without a will.

A "partner" under the Canada Pension Plan is entitled to share in someone's pensionable credits and may be entitled to survivor's benefits in the event of that person's death.

The definition of spouse usually has conditions and limits.
For unmarried couples, applications under the Family Relations Act must be made within one year of separation. After that, they will no longer be a "spouse" within the definition of the legislation. Married couples, on the other hand, must make their applications under the act within two years of divorce or the annulment of their marriage.

The Wills Variation Act and the Estate Administration Act both define a "spouse" as someone who was living with the deceased person immediately before his or her death. If the couple separated before the the person's death, they won't qualify as spouses.

The Divorce Act only defines "spouse" as including married or formerly married couples. Unmarried couples can't use this act for anything.

Being common-law is only about the definition of spouse.

Common-law spouses only become common-law spouses because they happen to meet the terms of a particular law's definition of "spouse," which usually happens because they cohabited in a marriage-like relationship for a specific period of time. They don't apply for common-law status; there's no government agency to apply to and there's no government agency that keeps track of common-law relationships.

Common-law spouses aren't legally married and will never become married, no matter how long the relationship lasts... unless of course they actually get married, with a marriage licence, a marriage commissioner and all the rest.

Summary:

A couple become common-law spouses when they meet a particular law's definition of "spouse." Meeting a law's definition of spouse usually involves (a) living together (b) in a romantic relationship (c) for a certain amount of time. No application is necessary, just the passage of time. The definition of spouse changes from law to law.

Most but not all federal laws define "spouse" as including unmarried people who have lived together for at least one year; most but not all provincial laws define "spouse" as including unmarried people who have lived together for at least two years.

Being common-law spouses doesn't mean that a couple is married; it means that the spouses may have certain rights and duties toward each other. The nature of these rights and duties also changes from law to law, and some laws impose terms and conditions on the rights and duties unmarried spouses.

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Polygamy: The Legal Background

As you probably know, there's a hearing underway to determine whether the Criminal Code provisions criminalizing polygamy are consistent with the Charter of Rights and Freedoms. If so, we may well see prosecutions brought against some of the fine folks of Bountiful, British Columbia. There's a fascinating legal background to the hearing that the media really isn't covering, I suspect because it's probably only interesting to law nerds like myself.

A Recent History of the Common Law on Domestic Relations

Once upon a time, in Europe following the collapse of the Roman Empire to be specific, marriage was an important private economic institution and largely functioned free of control by the church or state. Marriage, and the financial and familial obligations it entailed, was the basic socioeconomic unit of feudal Europe. Upon marriage, a man and a woman were considered to be a single legal unit under the control of the husband: all of the wife's property passed into her husband's control, wives lost the power to conduct business in their own names, a wife lost the right to retain the wages paid for her labour, and husbands became able sue on behalf of their wives ...and solely liable for suits brought against them. In return, she was entitled to be provided with the necessities of life, although the quality and sufficiency of those necessities lay at her husband's discretion.

As with other social institutions, I suspect that the relative importance of marriage can be gauged by the depth and richness of the common law principles which evolved to regulate it. The common law relating to marriage is indeed quite rich and deep, and depicts marriage on the one hand as a quasi-commercial enterprise governed by the law of contracts and on the other as bedrock upon which stood one's reputation and standing in the community.

One could sue, for example, for breach of promise to marry, jactitation of marriage, criminal conversation, harbouring a spouse, and a miscellany of other matrimonial torts. Breach of promise to marry was based on the law of contracts. Jactitation of marriage concerned the false boasting of married status, thereby decreasing the marketability of the person alleged to be married to the boaster. Criminal conversation and harbouring a spouse had to do with the luring of a spouse away from a marriage thus depriving the other spouse of the benefits of the marriage contract, his "conjugal right" to his wife's services and company.

Marriages were entered into by oral agreement and did not require religious solemnization. The role of the church largely lay in determining who might marry, the circumstances in which marriages might be dissolved and addressing other largely social questions.

The law on marriage was thus governed by two masters, the ecclesiastic law on entering and exiting a marriage and the civil common law on the rights and obligations flowing from marriage. This changed dramatically in the early sixteenth century, following the Protestant Reformation in Europe and the Henrician Reformation in England, when government took upon itself the right to manage marriage and divorce. Unfortunately, one major element of Catholic dogma which survived the reformations was idea that marriages were indissoluble, as a result of which getting a divorce in England required the passage of a private act of Parliament!

The Legislation on Marriage and Divorce

The first Parliamentary law on marriage was passed in 1753, in the form of Lord Hardwicke’s Act for the Better Preventing of Clandestine Marriages, to address the unfortunate habit the youth of England and Wales had developed of marrying in Scotland where a costly marriage licence was not required. Prior to this, oral marriage contracts, marriages per verba de praesenti, created a binding marriage; now, the parties had to marry in a church (with exceptions for Jews and Quakers), with the publication of banns and a state-issued marriage licence.

The first Commonwealth law on divorce was England's 1857 Divorce and Matrimonial Causes Act, which allowed people to be divorced by court order and stripped what little jurisdiction remained to the church, and revoked many of the older matrimonial torts:

"As soon as this Act shall come into operation, all Jurisdiction now exercisable by any Ecclesiastical Court in England in respect of Divorces à Mensâ et Thoro, Suits of Nullity of Marriage, Suits of Jactitation of Marriage, Suits for Restitution of Conjugal Rights, and in all Causes, Suits, and Matters Matrimonial, shall cease to be so exercisable, except so far as relates to the granting of Marriage Licences, which may be granted as if this Act had not been passed."

(If you were curious, and I know you are, a divorce à mensâ et thoro terminated the spouses' obligation to live together and the husband's obligation to provide the wife with the necessities of life without actually giving the parties a divorce; this is the origin of the much-misunderstood judicial separation. A divorce à vinculo matrimonii was required to actually terminate a marriage.)

The UK Divorce and Matrimonial Causes Act was absorbed by the Province of Canada (the pre-confederation political unit formed of Upper Canada and Lower Canada by the 1840 Act of Union) and by the Colonies of British Columbia and Vancouver as a result of the proclamation of Governor Sir James Douglas in 1858.

Marriage and Divorce at the Dawn of the 20th Century

Given the complexity of the common law on marriage and divorce, it's not terribly surprising that the legislation on these subjects would assume a similar quality, and by 1900 we had the federal and provincial Divorce and Matrimonial Causes Acts, the federal Offences in Relation to Marriage Act and the provincial Marriage Act. Marriage remained a tremendously important institution, one with profound social and economic consequences, and these laws sought to protect it.

Under the provincial Divorce Act of 1897, a husband could apply for a divorce on the basis of his wife's adultery. A wife, on the other hand, could apply for a divorce on the basis of her husband's incestuous adultery, rape, adultery coupled with cruelty, or adultery coupled with his abandonment of her for at least two years without reasonable excuse.

The provincial Marriage Act of 1867 allowed religious officials and government-appointed registrars to marry "any two persons" not under a legal disability to contract the marriage, providing that persons under the age of 21 had the consent of their father to the marriage. The act made it a crime to make a false statement to procure a marriage or to perform a marriage between persons not qualified to marry.

The federal Offences in Relation to Marriage Act of 1886 made it a crime to:

1. pretend to solemnize a marriage;
2. procure someone to solemnize a marriage who was not authorized to do so;
3. procure a feigned marriage; or,
4. marry someone while being married to someone else, in other words, to enter into a bigamous marriage.

About the same time, similar provisions were being introduced to the criminal law in Canada.

Bigamy, Polygamy and the Criminal Code

Sections 290 to 293 of the federal Criminal Code are titled "Offences Against Conjugal Rights." Section 290 says that every married person who goes through "a form of marriage" with another person and every person who goes through "a form of marriage" with a married person has committed bigamy, punishable under section 291 with jail for up to five years. Section 293 says that people who practice polygamy or "any kind of conjugal union with more than one person at the same time" has committed an offence.

It's a bit difficult to tell these sections apart. Bigamy and polygamy are rooted in the Greek word gamos, meaning marriage. The prefix "bi" means two, and the prefix "poly" means many; accordingly, the dictionary definition of bigamy is being married to two people, and the definition of polygamy is being married to many people. (Polyandry means having many husbands and polygyny means having many wives.) Bigamy is the traditional criminal offence, however, having been made a felony punishable by death by the first Parliament of James I in 1604, and continued in the 1861 Offences Against the Person Act with less severe consequences.

The historical intention seems to have been preserved in the Criminal Code. Section 290 clearly focuses on marriage as the problem created by bigamy; the offence lies in marrying someone knowing him or her to be married, or a married person marrying again while aware that his or her previous marriage subsists. Section 290(2) excuses the bigamous conduct if the married party genuinely believes his or her spouse to be dead.

Section 293 on the other hand, seems aimed at criminalizing polyamorous conduct; the offence of polygamy lies in the parties' agreement to live together in a marriage-like relationship, although, to be clear, a form of marriage ceremony isn't strictly required. This seems to be the core of the problem the Crown is targeting in the present hearing, and the resulting question of whether the criminalization of this sort of conduct is consistent with the Charter guarantee of freedom of religion.

In the legal climate prevailing in 1604 and 1861, the criminalization of bigamy made sense. Bigamous marriages could have disastrous social and economic consequences for the innocent party, and the criminal law fit neatly with the common law principles that had accumulated in respect of the rights and obligations marriage entailed. The criminalization of polygamy, assuming that issues about marriage aren't really the problem the law was intended to address, is about the legislation of morality and the enforcement of conformity. In the nineteenth century, I'm sure this made sense; today I'm not so sure.

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New Random Answers to Random Search Terms

I am able to review the search terms that lead people to my website. Every now and then, a search term is particularly unusual or suggests an answer that doesn't, and perhaps shouldn't, appear in the website. In this irregular feature, I will randomly reply to these search terms. New Random Answers will reappear at unpredictable intervals.

These search terms are all about marriage and divorce.

(Remember, the law that's being applied here is the law of British Columbia, Canada, and the laws of one jurisdiction are often very different from the laws of the next.)

>> consequences of getting remarried without getting divorced

This one's easy enough: your new marriage won't be valid.

Without a divorce, any other marriage is technically bigamous under the Criminal Code yet also void under the common law.

>> how many years after separation are you considered divorced

Never. Until you get that divorce order you're still married. No marriage is over until a court has made a divorce order, no matter how much time has passed since the spouses separated.

>> is it ungodly to attend a person's third marriage

I don't normally pronounce on religious issues, but this search term was too hard to pass up. If it is ungodly, perhaps you need to find a new religion if you're really prepared to put your religious scruples above your loyalty to a friend and a celebration of his or her happiness.

>> use of the divorce act for common law relationships canada

Also easy: none.

The federal Divorce Act only applies to people who are married to each other or who used to be married to each other. Unmarried couples, including couples who qualify as common-law, only have the provincial Family Relations Act and a few other laws to rely on in resolving the issues arising from their separation.

>> common law marriage divorce needed to end relationship

Common-law couples are not married; there is no such thing as a common-law marriage.

All "common-law" status means is that a couple qualify as "spouses" within the meaning of a particular law. Some laws, like the Family Relations Act and many other provincial laws, define a spouse as someone who is married or someone who has lived in a "marriage-like relationship" with another person for at least two years. Other laws have different definitions of spouse. Most federal laws, for example, only require that the couple have lived together for one year, while laws about welfare eligibility require an even briefer period of cohabitation.

Since common-law couples aren't married, there's no need for them to get a divorce to formally end their relationships. A common-law relationship is over when the couple separates. There's no magic to it, nor any need for a court order.

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The Cleavers Are Moving Out: StatsCan reports on the changing face of the Canadian family

Statistics Canada has published the results of the 2011 Census, and its analysis of the changing makeup of the Canadian family is worthy of note. As CBC's article on the analysis pithily notes, "the nuclear family is no longer the norm in Canada."

The newsbite summary of Statistics Canada's conclusions says this:

• Married-couple families were the predominant family structure in 2011, at 67.0%. For the first time, there were more common-law-couple families in 2011, 16.7%, than lone-parent families, 16.3%.
• The 2011 Census of Population counted 64,575 same-sex couples. In 2011, 32.5% of same-sex couples were married, nearly double the 2006 share. The 2006 to 2011 period marks the first five-year period during which same-sex couples could legally marry, following the legalization of same-sex marriage for all of Canada in July, 2005.
• Stepfamilies were counted for the first time in the 2011 Census of Population, providing a more detailed portrait of Canadian families. There were 464,335 stepfamilies in 2011, or 12.6% of couple families with children aged 24 and under.
• For the first time, there were more one-person households in 2011, 27.6%, than couple households with children aged 24 and under, 26.5%.

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Trio Tie the Knot in Brazil

CNN reports that a public notary in Brazil has "set off a firestorm" by granting a civil union registration to a trio composed of one man and two women. According to the article, the three live together and love one another like persons in any other cohabiting relationship, and granting the registration will give the trio the legal benefits of marriage and recognition as a family unit.

This raises of course, a question that has been waiting to be raised in British Columbia for some time now. The Family Relations Act defines "spouse" as including married spouses and persons for have "lived with another person in a marriage-like relationship for a period of at least 2 years." Nothing in this definition says that you can't be living with more than one person in a marriage-like relationship, although I think you would have to read the definition as establishing separate spousal relationships among the parties to the relationship. In other words, A would be in a spousal relationship with B while simultaneously being a spousal relationship with C, and B and C would have a spousal relationship of their own. The definition of spouse in the Family Law Act also allows for this eventuality.

The point, of course, is that being in a spousal relationship provides certain legal entitlements that arise on the breakdown of that relationship. Under the Family Relations Act these involve spousal support and obligations in respect of stepchildren. Under the Family Law Act, unmarried spouses will also be entitled to share in family property.

My thanks to my friend and colleague Agnes Huang for sharing the CNN article with me.

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Unmarried Couples, the Division of Property and the New Family Law Act

Courthouse Libraries BC has posted a short comment of mine on how the transitional provisions of the Family Law Act are going to work with unmarried couples' existing property claims. Read the post on Courthouse Libraries' blog, The Stream.

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Kerr v. Baranow 2.0: Supreme Court Releases Second Trial Decision

Ms. Kerr and Mr. Baranow are one of those unfortunate couples, like Mr. and Mrs. Hartshorne and Ms. Rick and Mr. Brandsema, whose legal battles have doomed them to fame within the family law bar. The Supreme Court has just published its second trial judgment addressing the matters arising from their 2006 separation.

At the original trial in 2007, Ms. Kerr applied for spousal support and a trust interest in property owned by Mr. Baranow. As the parties were unmarried, Ms. Kerr could not avail herself of the property provisions of the Family Relations Act and was forced to rely on the awkward and general unsatisfactory equitable principles of unjust enrichment. The trial judge made an order for retroactive spousal support, and, finding that Mr. Baranow had been unjustly enriched by Ms. Kerr's contributions, gave her a one-third interest in a property owned by Mr. Baranow worth about $950,000 for a total cash award of $315,000 plus costs.

Mr. Baranow appealed. The appeal judgment was released in 2009, and allowed Mr. Baranow's appeal from the cash award and the retroactive aspect of the order for spousal support.

This time, Ms. Kerr appealed. The Supreme Court of Canada released its judgment in 2011, restoring the trial judge's decision on spousal support, ordering a new trial on Ms. Kerr's unjust enrichment claim, and giving Ms. Kerr her costs of the proceedings to date. The reasons of Mr. Justice Cromwell are a masterful restatement and modernization of the law on unjust enrichment and are required reading for law students throughout Canada.

The second trial judgment was released last week. The court applied Justice Cromwell's decision with rigour and exactitude, and reached almost the same conclusion as the original trial judge: Mr. Baranow had been unjustly enriched by Ms. Kerr's contributions, and she would be entitled to a one-quarter interest in Mr. Baranow's property, for a total cash award of $240,000 plus costs. 

The money likely spent over five years, two trials and a trip to the Supreme Court of Canada to achieve a result $75,000 off the original judgment is worth some reflection... as are the costs awards owing by Mr. Baranow to Ms. Kerr.

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