Law360 Canada (July 14, 2026, 1:38 PM EDT) --

Gary S. Joseph

Claims for a joint family venture (JFV) arising from a plea of unjust enrichment have become increasingly popular in family law courts in Ontario.

Largely as a result of the reluctance of the Ontario government to include “common law spouses” as spouses entitled to property and equalization claims under Part 1 of the Family Law Act, equitable claims based upon a plea of unjust enrichment now fill our courts and require vast investment of judicial resources.

These claims, in particular, but further equitable claims (for example claims for a purchase money resulting trust), are fact and evidentiary driven, again forcing our backlogged courts to commit sparse resources to determine these matters. In my view, it’s time to reduce or eliminate many if not all of these claims from the family law palette of claims arising from intimate personal relationships.

Many years ago, I wrote and published a paper (in the Reports of Family Law) on s. 15 of the Canadian Charter of Rights and Freedoms (Charter). It was specifically directed to the rights of unmarried spouses. (See Gary S. Joseph, “Section 15 of the Charter – Equality Rights and Marital Status Discrimination: Rights of the Unmarried Cohabitant Upon Breakdown of the Relationship” (1990) 26 RFL Articles 235.)

In the article, I argued that the legislative distinction between married and unmarried spouses in property division violated s. 15 of the Charter. Ultimately and unfortunately, in my view, the Supreme Court of Canada did not agree with my argument (I pause here to permit all my critics at the family law bar to exclaim, “What a surprise, one of your arguments rejected by a court, ha ha”).

In Nova Scotia (Attorney General) v. Walsh, 2002 SCC 83, a case that originated in the Nova Scotia Supreme Court and became known as the Walsh v. Bona matter, two unmarried cohabitants lived together in a conjugal relationship for about 10 years and had two children. They separated, and disputes arose about assets and liabilities accumulated during the relationship.

The female partner applied under the Matrimonial Property Act, R.S.N.S. 1989, c. 275 seeking an equal division of property. She challenged the definition of “spouse” in s. 2(g) of the Family Maintenance Act, R.S.N.S. 1989, c. 160. She asked the court to “read in” to the Act a definition of spouse that would extend statutory property-division benefits to common law partners.

The trial court, the Nova Scotia Supreme Court (Walsh v. Bona, (1999) 178 NSR (2d) 151), ruled against the female partner finding no Charter violation. The Nova Scotia Court of Appeal (see Walsh v. Bona, 2000 NSCA 53) overturned the trial court and found that the exclusion of common law spouses was indeed a violation of the Charter equality rights guaranteed by s. 15. The Supreme Court did not agree and set aside the appeal court’s ruling.

The Supreme Court found, inter alia, that the choice not to marry supported the legislative distinction, and there was no violation of s. 15 of the Charter. Further the court pointed out that alternative remedies and arrangements remained available to unmarried partners to address inequities on relationship breakdown, including constructive trust and support regimes.

Despite the Supreme Court’s rejection of arguments in favour of expanding property rights to unmarried parties to intimate personal relationships, provincial legislatures were not prevented from acting. Unfortunately, the issue has not attracted the attention of various provincial governments in Ontario. Thus, the legislative lacuna continues, and non-married parties are forced to seek property remedies through equitable concepts including trust claims.

As noted above, those claims demand a serious and time-consuming commitment of judicial resources and party’s legal funds. In my view, these claims are an unnecessary burden on an overtaxed and underfunded judicial system. To me the answer is simple: amend the provisions of the Family Law Act to expand the definition of spouse to permit equalization claims in and for unmarried partners. Use s. 29 of the Family Law Act as the template. I suggest that this would greatly reduce claims based upon unjust enrichment and claims to joint family ventures as such claims could be more efficiently managed (most of the time but admittedly not always) by the equalization formula in the Family Law Act.

However, this change alone does not move the needle enough. More needs to be done to reduce delays and unclog the judicial system in family law matters. Here are my further suggestions for how we might reduce delay and increase access to justice with a nominal commitment of taxpayer funds:

1. Perhaps the most cost-intensive of my suggestions: for goodness’ sake, complete the province-wide implementation of Unified Family Courts! I have no further patience for delays in this regard.
2. Impose mandatory mediation (yes, I support this now even if in the past I opposed it) for all family law cases except those involving parenting disputes, tort claims and claims of intimate partner violence and/or domestic violence of any kind. I agree that this will involve a sophisticated triage system but, in the end, I believe it will greatly reduce the number of contested family law matters before our courts. If necessary, further resources need to be devoted to court-based mediation. This, together with the proliferation of private qualified mediators, will vastly reduce the backlog.
3. My next suggestion requires the government to implement regulations (similar to those enacted for arbitrations) to better regulate the mediation process. It continues to be the “wild west” in this unregulated world. Don’t believe me? Look at what passes for mediation outside our metropolitan centres or in some ethnic communities.
4. With the co-operation of the Law Society of Ontario, mandate specific CPD courses for family law lawyers who wish to litigate. No, I am not suggesting the barrister/solicitor dichotomy of the United Kingdom, but the absence of trial skills exhibited in our family courts is at times shocking. Don’t believe me? Ask our justices; and
5. Amend the Family Law Act as noted above to help reduce the proliferation of trust claims.

A closing note: On June I completed a 10-day trial in the Superior Court almost entirely focused on property claims by an unmarried common law partner. My client’s disclosure topped over 10,500 documents met by an equal number from the opposite party. My experienced opponent at some point agreed with me that had the parties been a married couple, the application of the equalization process would have consumed about three to four days of trial time if not settled applying the formula in the statute.

Gary S. Joseph is counsel to the firm of MacDonald & Partners LLP. A certified specialist in family law, he has been reported in over 350 family law decisions at all court levels in Ontario and Alberta. He has also appeared as counsel in the Supreme Court of Canada. He is a past family law instructor for the Law Society Bar Admission Course and the winner of the 2021 OBA Award for Excellence in Family Law. A thank you note to one of our second-year (2L) students Nicholas Merrithew for help in digging up my article and summarizing the Walsh v. Bona three level decisions.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, LexisNexis Canada, Law360 Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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