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Resulting Trusts

For common law separation Canada, an option for dividing property other than (or in addition to) a claim for unjust enrichment is the use of a resulting trust.

The resulting trust is helpful if the common law spouse has contributed to the payment of property that has ended up in her partner’s name. It arises where the parties had an agreement, express or implied, that the beneficial ownership of property should be shared notwithstanding the legal title. If there is no express agreement, the Canadian courts will look at the parties’ conduct prior to separation to see if an intention can be inferred.

One twist is that post-acquisition contributions can be used to show common intention. Thus, for example, if the common law spouse made mortgage payments on a property after it was purchased, it can be found that she has an interest in the property because of a resulting trust.

Note that, while useful in showing that a constructive trust exists, spousal efforts such short of financial contribution, cannot be the basis of a resulting trust in Canada.

Related Articles On Common Law Property Division

Unjust Enrichment - how property is divided on common law separation in Ontario.

Find out the defences to a claim for unjust enrichment.

Read about some examples of unjust enrichment.

Find out the issues in a case of unjust enrichment.

Remedies - what will a court do if it finds that there has been an unjust enrichment.