The Court first noted that common law partners’ rights were traditionally based on the principles of resulting trust and unjust enrichment.

Under the traditional analysis, a resulting trust can arise in two situations: the gratuitous transfer of property from one partner to the other, or a couple’s joint contribution to the acquisition of property, where title has been registered in the name of only one of them. An unjust enrichment claimant must traditionally establish three distinct elements: an enrichment, a corresponding deprivation, and the absence of a juristic reason for the enrichment.

The Supreme Court rejected common past practice where courts have required the claiming partner to show a direct connection between his or her own financial or other efforts and the acquisition of the property that came to be in the other’s name. It was held that this “fee-for-service” calculation fails to reflect the reality of the lives of many domestic partners and is inconsistent with the inherent flexibility of unjust enrichment and with the courts’ approach to equitable remedies.

The court substituted a more “common sense” analysis for this rigid approach to quantifying compensation, stating at para. 69: “[T]he legal consequences of the breakdown of a domestic relationship should reflect realistically the way people live their lives. It should not impose on them the need to engage in an artificial balance sheet approach which does not reflect the true nature of the relationship”.

The courts should, however, continue to consider if a share of the property should be awarded (using the principle of constructive trust) or whether a monetary award is sufficient. Where a monetary award is to be made, the courts’ “common sense” analysis now requires a consideration of whether or not there was a “joint family venture” to which both partners contributed.
. When examining whether a relationship is a “joint family venture”, the courts are to review the evidence under four broad headings: mutual effort; economic integration; actual intent; and priority of the family. Once the “joint family venture” is established, the courts can then consider the net wealth that has accumulated proportionate to the claimant’s contributions. Thus, there must be a link between contributions and the accumulation of wealth.

In the Kerr case, the plaintiff was unsuccessful in establishing an entitlement to one-half of the wealth accumulated during the relationship. She was not able to show that the defendant had been unjustly enriched at her expense, that their relationship constituted a joint family venture, and that her contributions were linked to the generation of wealth during the relationship.” The parties kept their financial affairs separate.

In the Vanesse case, however, the couple had been working collaboratively towards common goals. They jointly raised children together and acquired wealth together. The court took into account, among other things, their economic integration evinced by a joint bank account and by the property being jointly registered in their names.

Lawyers often act as negotiators or mediators to assist clients with resolving the division of assets, custody of children, access to child, spousal and child support.  Once settled, the agreement is documented in a Separation Agreement, signed by the divorcing couple.  When they get around to filing for a divorce, that is all they will ask for as all other issues have been resolved.  They will obtain an undefended Divorce Order only.  Hence, the low percentage of active divorce files with a statement of defence.

It is usually more cost effective to employ lawyers to assist in resolving the claims of the couple, rather than employing lawyers to litigate the resolution of the issues through the court system.  The cost of a trial is quite high and couples will have no choice but to use their family assets and resources to pay for their lawyers.  Those resources can be better spent on trying to find ways to resolve differences rather than a “win at all costs” approach in an adversarial court system.

Lawyers can also recommend other third parties who may assist the parties in some of their issues, such as business valuators, child psychologists, and family law mediators.

Further, the use of lawyers shortly after separation will assist the couple in planning how to manage their financial situation (and avoid risks) pending resolution.

Therefore, divorcing couples should give consideration to contacting a lawyer to obtain independent legal advice immediately after separation.  In many cases, hiring lawyers to work towards a negotiated settlement will result in an earlier settlement and savings of costs in the court system.  From the Statistics Canada data from 2008/2009, it appears that divorcing couples are already aware of the benefits of hiring lawyers at an early stage.