Concubines and Cohabitees: A Comparative Look at “Living
Together”
Philip Girard*
The author examines, from a comparative
perspective, the law relating to the division
of assets upon the termination of a rela-
tionship between cohabitees. After outlining
briefly three possible approaches –
the lais-
sez-faire approach, the intention-based
approach and the unjust enrichment
approach –
the author goes on to’ analyse
each in the context of Quebec civil law and of
Canadian common law. He concludes that,
broadly speaking, the two systems have
adopted similar solutions to the problem of
dividing assets at the end of a marital rela-
tionship, but that there is much greater di-
vergence in the treatment of cohabitees. The
common law has completed a transition from
the harsh intention-based approach, to the
use of the more flexible and fairer unjust
enrichment principle. The civil law has ex-
perienced serious doctrinal difficulties in
accomplishing a comparable shift. The civil-
ian system tends to focus more upon rights
within defined relationships than does the
remedy-oriented common law. The common
law could more easily produce a remedy for
those who sought to share common assets
without blessing the cohabitee relationship
itself. The civil law, or more accurately,
civilian legislators, found it more acceptable
to ignore the relationship, than to sanction it
in any way. Quebec courts may be forced to
step in to ameliorate the present unfair situa-
tion by applying the doctrine of unjust en-
richment without the express approval of the
legislature. The danger is that the courts will
be forced to borrow unthinkingly from the
common law, leading to confusion and doc-
trinal obscurity.
L’auteur examine dans le cadre d’une dtude
comparative, l’6tat du droit du partage des
biens de concubins. L’auteur prdsente un
bref expos6 des trois fagons d’aborder le
problme (doctrines du laisser faire, de Fin-
tention prrsumre des parties et de l’enrichis-
sement sans cause), qu’il situe ensuite dans
le contexte du droit civil qudbdcois et du
common law canadien. II conclut que les
deux syst~mes ont adopt6 des solution sem-
blables face au problme de la repartition des
biens A la fin d’un mariage, mais qu’il existe
d’importantes distinctions en ce qui
concerne les concubins. Le common law a
complt6 la transition d’un rdgime fond6 sur
l’intention prrsumre des parties vers un r6-
gime plus flexible et plus dquitable fond6 sur
l’enrichissement sans cause. Cette transition
ne s’est pas produite en droit civil, h cause de
la tendance de ce syst~me i porter plus atten-
tion aux droits des parties dans le cadre de
relations reconnues que ne le fait le common
law, ax6 sur les faits. Le common law 6tait
donc en mesure de fournir un recours h ceux
qui voulaient partager des biens communs
sans pour autant consacrer l’union de fait. Le
droit civil, ou, plus prrcis6ment, les 1dgisla-
teurs civilistes, a pr6fdr6 ne pas tenir compte
de cette union, plutft que de la sanctionner
d’une mani~re quelconque. Les tribunaux
qurbecois pourraient donc 6tre forces A inter-
venir pour clarifier une situation injuste, en
appliquant la doctrine de l’enrichissement
sans cause sans l’approbation expresse du
legislateur. Le danger reste que les tribunaux
soient forcds d’emprunter aveuglrment
la
common law, ce qui risque de mener A la
confusion, et A l’obscurit6 doctrinale.
*Of the Faculty of Law, The University of Western Ontario.
McGILL LAW JOURNAL
[Vol. 28
Synopsis
Introduction
1.
H.
The Intention-Based Approach
Cohabitees and Separation: Three Approaches
A. The Laissez-Faire Approach
B.
C.
Resolution of Property Disputes Between Cohabitees: The
Intention-Based Approach
A. Canadian Common Law
The Unjust Enrichment Approach
B.
Implied Partnership
The Contractual Approach –
1.
2. The Trust Approach – Resulting Trust
The Civil Law of Qudbec
1.
2.
Innominate Contracts
Implied Contract of Partnership (Socit6 de Fait)
III. The Unjust Enrighment Approach
A. Canadian Common Law
The Role of Intention
“Subsidiarity” – Common Law vs Equitable Remedies
1.
2.
3. The Nature of the Cohabitees’ Relationship
4. Evaluation of the Unjust Enrichment Approach
B.
The Civil Law of Quebec
1.
2. Remedies for Unjust Enrichment
Subsidiarity
Conclusion
A. Comparative Law Overview
B. Possible Avenues for Reform in Qudbec
*
*
*
1983]
Introduction
LIVING TOGETHER
To regulate or not to regulate? The debate over the position which the
law should adopt with regard to quasi-marital I relationships promises to be
one of the most interesting issues in the family law of the 1980s. The
legislative actors across Canada have all taken up preliminary positions, but
without much sense of confidence or conviction, and one would not be
surprised to see the stage rearranged totally by the end of the decade. It was
perhaps the recent Canada-wide wave of legislation reforming matrimonial
property relations which itself acted as a catalyst for debate. Prior to the
reforms in the common law provinces, there was little difference 2 in the legal
‘The question of terminology is a vexed one, all the more so given the comparative
perspective of this article. The English civil law term “concubine” (exceptionally, “concubi-
nary”; see art. 1657.2 Civil Code) seems to be falling into disuse, although it at least has the
merit of certainty in the absence of a generally accepted replacement. The Social Aid Act,
R.S.Q. 1977, c. A-16, subs. l(d) extends its definition of “consorts” to “a man and a
woman … who live together as man and wife” (“qui vivent ensemble maritalement”), thus
avoiding the creation of a new label, and the Workmen’s Compensation Act, R.S.Q. 1977, c.
A-3 uses similar terminology in s. 49. The Civil Code Revision Office favoured “de facto
spouses” but the use of the word “spouse” suggests a rigidity of approach which is probably not
advisable. Many “de facto spouses” are unable to marry because of existing de jure spouses;
many desire to eschew the institution of marriage in its entirety; and then there is the question of
homosexual unions, which seem automatically excluded from recognition by a terminology
importing a spousal qualification. Even if the Civil Code Revision Office thought that
homosexual couples should not be assimilated to heterosexual couples for the purposes of de
facto spousehood, it would probably be best to leave the terminological door open, given the
rapidly changing social climate of the 1980s. The continental expressions “union defait” and
“union libre” are preferable but leave one without satisfactory labels for the parties to the union
-partenaires? unitds? One thing is certain –
the usage of “gpoux de droit commun”, which
one occasionally sees in the Qu6bec cases, is to be avoided at all costs, because even in the
common law, the expression “common law spouse” does not refer simply to two parties who
are cohabiting as man and wife. Rather, a common law marriage is an alternative form of
marriage which gives rise to the normal consequences of marriage. See W. Holland, Unmar-
ried Couples: Legal Aspects of Cohabitation (1982) 9-10 and 14-28.
Writers in Canadian common law jurisdictions seem to have settled on the terms “cohab-
itation” and “cohabitees”. See Holland, at 1-2 and Bala, Consequences of Separation for
Unmarried Couples: Canadian Developments (1980) 6 Queen’s L.J. 72, especially fn. 3. It is
proposed to use these terms in the absence of any better alternative, without suggesting that
they be the definitive phrases for either the civil law or the common law. They at least have the
advantage of casting the net as broadly as possible, a not inconsiderable benefit given the
current turmoil in this area of the law.
2Assuming, of course, that there was no contract between the parties. As to whether the
common law recognized “cohabitation agreements” between unmarried parties, see infra, note
22, and accompanying text. On the identity of treatment traditionally accorded spouses and
cohabitees, see Stanley v. Stanley (1960) 23 D.L.R. (2d) 620, 625, (1960) 30 W.W.R. 686
(Alta S.C.) per Milvain J., affd (1960) 36 D.L.R. (2d) 443, (1960) 39 W.W.R. 640 (Alta
S.C., App. Div.). For a more recent formulation, see Pettkus v. Becker [1980] 2 S.C.R. 834,
850, (1980) 117 D.L.R. (3d) 257, per Dickson J. [hereinafter cited to S.C.R.].
REVUE DE DROIT DE McGILL
[Vol. 28
position of parties to marital or non-marital unions when questions of property
division arose at the termination of the relationship.3 However, once the
various family law reform acts in common law Canada accorded to each
spouse rights to equal division of certain assets upon termination of a marital
relationship, an important distinction arose between married couples and
others.’
In Qu6bec too, Bill 895 has had a catalytic effect, though in a somewhat
different way. While the existence in Qu6bec of matrimonial regimes which,
by definition, were unavailable to unmarried couples would tend to suggest
that there was always a great distinction between property division upon the
break-up of marital as opposed to non-marital unions, in fact, the distinction
was not so great. Because separation of property was traditionally the most
popular regime, 6 most spouses in Qu6bec were free to regulate their economic
relations by contract in as great or as little detail as they wished. As I will
argue below,7 cohabitees were probably free to do the same, even before the
abrogation of art. 768 of the Civil Code.8 In addition, in cases where an
agreement led to an unconscionable result, certain remedies were available to
the parties irrespective of whether they were married. 9 When the provisions of
Bill 89 relating to the compensatory allowance 10 come into effect, the distinc-
tion between those within and without the charmed circle of marriage will
again become important. Unmarried couples will, of course, not be able to
avail themselves of the compensatory allowance, and will be left to whatever
recourses are provided by the droit commun.
The purpose of this article is to examine, from a comparative law
perspective, recent trends in the law relating to cohabitees in one specific but
I As to the recourses available to parties to marital and non-marital unions at common law,
see infra, Parts I(A) and 11(A).
4The only province in which the division of property provisions may be extended to
cohabitees is Newfoundland. Subsection 32(2) of The Matrimonial Property Act, S.N. 1979,
c. 32, allows a man and woman who are cohabiting to adopt the provisions of the Act through a
cohabitation agreement, after which it applies to them as if they were married.
5An Act to establish a new Civil Code and to reform family law, S.Q. 1980, c. 39.
6R. Comtois, Trait de la communautide biens (1964), para. 374 (seventy-threeper cent of
married couples adopting separation of property in 1962). See also Rivet, La Popularitd des
diffrrents rigimes matrimoniaux depuis la reforme de 1970 (1974) 15 C. de D. 613.
7See infra, note 64 and accompanying text.
8Accomplished by An Act to establish a new Civil Code and to reform family law, S.Q.
1980, c. 39.
9See infra, Parts I(B) and 11(B).
10See Civil Code Revision Office, Report on the Civil Code (1977), vol. I, book II, arts
458-62, 533 and 559. These articles will apply, of course, to parties married under separation
of property as well as to those married under other regimes. “Compensatory allowance”, the
phrase used in art. 559, is the rather lacklustre English version of the French prestation
compensatoire.
1983]
LIVING TOGETHER
crucial area: the division of their assets upon termination of the relationship.
Following some criticisms of the current state of the law, I propose to offer
some observations about current legislative policy with regard to cohabitees
in general. In order to facilitate the discussion, I will use the following
situation as a paradigm:
Paul and Denise have cohabited for six years. During that time they
have acquired certain moveables but their main asset is a house which
is registered in Paul’s name. Both parties contributed (Paul more than
Denise) part of the down payment, and instalments on the mortgage or
hypothec are paid from a fund to which Paul and Denise contribute
approximately equal amounts. Both parties have spent many hours
improving the house.
What is the legal situation of the parties when they decide to separate?
The law could conceivably take one of three positions, which I will outline in
summary fashion before proceeding to a more exhaustive analysis of the
present situation and options for reform, focusing particularly upon where
reform is needed most –
in Qu6bec.
I.
A.
Cohabitees and Separation: Three Approaches
The Laissez-Faire Approach”
Here the law would assume that the parties were the best regulators of
their own affairs and would interfere as little as possible. 2 As the parties
would be free to determine contractually the economic consequences of their
relationship,’ 3 it is not for the law to intervene if they chose not to do so. Any
personal property ,4 to which Paul or Denise could establish title would belong
to that party exclusive of any claim by the other. If neither party could
establish ownership of a particular moveable, for instance, if the purchase
receipt had been destroyed, presumably the personalty would be held in
“For a review of the laissez-faire approach in the common law, see Niederberger v.
Memnook (1981) 130 D.L.R. (3d) 353, 356-7 (B.C.S.C.). For the civil law, see Bri~re,
R~flexions 6 l’occasion d’une rdforme (1970) 73 R. du N. 55, 56-7, citing Belgian jurispru-
dence.
12This would be a more modem justification of the laissez-faire approach. Traditionally, of
course, the courts would not intervene in such disputes because of the “illicit” nature of the
relationship.
1 Such freedom is beyond doubt in Qu6bec since the abrogation of art. 768 C.C. See supra,
note 8.
throughout this paper.
14 The terms “personal property”, “personalty” and “moveable” will be used interchangeably
McGILL LAW JOURNAL
[Vol. 28
common in equal shares by both parties. 5 As the object would obviously not
be res nullius, no other solution seems possible, even for the holders of the
laissez-faire view.
As for the house, Paul would be recognized as its sole owner. As Denise
extracted no promise from Paul to repay the money which she contributed,
nor any guarantee to attribute a share in the property to her, she would have no
right to any interest in the property. Her payments would be characterized as
gifts to Paul, or as contributions toward the household expenses of the couple,
contributions which are not recoverable when the relationship ends. 6
In summary, the law would be content to assume that proof of title or
ownership entitles the holder to the exclusive enjoyment of the property in
question. Only in cases where such proof is unobtainable would the law,
Solomon-like, decree equal division.
B.
The Intention-Based Approach
As mentioned earlier, cohabitees are now free to determine by contract
the division of their assets upon separation. If they do so by means of an
express contract, the only problem will relate to the interpretation of the
document. If they do not, however, all is not lost. Implied contracts are a
familiar feature of both the civil law and the common law, and there is no
reason that two cohabitees could not conduct themselves in such a way as to
indicate a common, though tacit, assumption that their assets were to be
allocated in a particular way upon termination of the relationship. 7
Any difficulties in this approach are mostly factual, not legal. 8 Given
that direct evidence of intention is virtually always lacking in such situations,
one is left in the unenviable position of having to draw inferences from
conduct. The main controversy here has traditionally centred upon the identi-
‘”The common law would say that the parties were joint owners of the property, with the
right of survivorship operating. The statutory presumption that parties take as tenants in
common (i.e. with no right of survivorship) applies only to land, not to moveables. See N.
Palmer & E. Tyler, eds, Crossley Vaines on Personal Property, 5th ed. (1973) 56-7. The civil
law would say that the parties held the property in a state of indivision, where, of course, no
right of survivorship operates.
6For the common law, see Bala, supra, note 1, 128-9. The civil law position is discussed in
H6leine, Nouveaux propos autour des conflits entre mariage et concubinage: des solutions
rialisant un heureux iquilibre entre l’conomique et le moral (1980) 40 R. du B. 463.
law lawyers would be more accustomed to characterizing this situation as
implied (or resulting) trust rather than implied contract. For my purposes the difference is
immaterial.
1
“Common
“But see McLean, comment, (1982) 16 U.B.C.L. Rev. 155, 159-60.
19831
LIVING TOGETHER
fication of particular types of conduct, such as contributions by labour rather
than money toward the acquisition of assets enjoyed by the couple, which will
or will not give rise to the required inference.
It is apparent that the laissez-faire and intention-based approaches are
usually complementary. Although it might be possible for a court to say that
the second approach was simply not open to cohabitees because of the nature
of their relationship, 19 it is more likely that a court would accept the theoretical
validity of the second approach, but simply hold that the facts necessary to
support an inference of common intention were lacking. In the absence of
sufficient factual underpinning, the intention-based approach fails and the
laissez-faire view must necessarily be applied.
C.
The Unjust Enrichment Approach
The final position which the law could adopt in order to resolve the
Paul-Denise dispute would be to apply the general principle of unjust enrich-
ment. This approach gives little heed to the intention of the parties. 2 It is a
solution imposed by the law in order to redress an economic imbalance which
has arisen as a result of the defendant’s acts.2′ Its application to the cohabitee
situation is simply one example of the operation of a wider principle which is
largely unconcerned with the nature of the parties’ domestic arrangements., 2
II.
A.
Resolution of Property Disputes Between Cohabitees: The
Intention-Based Approach
Canadian Common Law
The common law recognizes a number of ways in which the party
lacking title in our paradigm situation might assert a right to a share of
property held by the party with title. In what follows, it is assumed that there
was no express contract between the parties. We are dealing with trusts or
contracts arising from implied intention, that is, an intention to be inferred
from the parties’ conduct.
“9Although theoretically possible in Qu6bec, this avenue is, practically speaking, super-
seded now in common law Canada after Pettkus v. Becker, supra, note 2.
9 Or at least to the intentions of the enriched party. The intentions of the impoverished party
may still be relevant. See infra, Part 11.
21 The precise requirements of the common law and the civil law for actions based upon
unjust enrichment are set out infra, Part III.
2 Except, of course, in so far as those arrangements may be ajustification for the enrichment
which has occurred.
REVUE DE DROIT DE McGILL
[Vol. 28
1.
The Contractual Approach –
Implied Partnership
As long as both parties had contractual capacity, there would seem to be
no theoretical obstacle to establishing some form of consensual partnership
arrangement, either with respect to all of their assets and liabilities 2 or with
respect to the acquisition of a particular asset. 4 At one time in the not-so-
distant past, judges suggested that such a contract, “being founded on immor-
al consideration, would not be enforceable”,21 This opinion, however, was
discredited completely by the early 1970s, and the contrary view was hailed
as “more in accord with recent developments”. 6
But the partnership approach was never very popular with cohabitees,
for obvious reasons. A disgruntled cohabitee usually sought only a share of a
specific asset, typically a house or farm which had been acquired through the
efforts of both parties. If a true partnership were established, there was a
danger that the whole economic life of the cohabiting couple could be
reopened by means of an accounting action. Both parties would be liable to
contribute to the debts of the partnership in the “agreed upon” shares.27 Both
parties could presumably bind each other to third parties 28 respecting part-
nership obligations. In short, the partnership approach was too blunt an
instrument for most cohabitation situations. It would be useful only where the
cohabitees were actually running a business together, with most of the assets
in the name of one party.
3A partnership can exist in the common law although one party be exempted from
responsibility for losses, provided this is made clear in the agreement. Partners will, however,
share losses equally even if they share profits unequally, unless the contrary is stated in the
agreement.
24This latter type of arrangement, limited to a specific object and pursued for a commercial
objective, is often called a joint venture. It need not entail the full panoply of incidents of a true
partnership, and is really only a particular type of contract.
‘Diivell v. Fames [1959] 2 All E.R. 379, 384, [1959] 1 W.L.R. 624 (C.A.) per Ormerod
L.J. [hereinafter cited to All E.R.]. Hodson L.J. said, at 381, that “no contract or joint
enterprise can be spelled out of their relationship of man and mistress”. Willmer L.J., in
dissent, approved the joint venture approach as theoretically available, although no contract
had been alleged specifically in this case. His dicta were approved in later cases, notably Cooke
v. Head [1972] 2 All E.R. 38, [1972] 2 W.L.R. 519 (C.A.) [hereinafter cited to All E.R.].
26Cook v. Head, ibid., 41. See also Pettkus v. Becker, supra, note 2, 850.
zThe common law provinces deal with this matter in their acts governing partnerships. See,
e.g., Partnership Act, R.S.O. 1980, c. 370, subs. 44(1). For the Qu6bec civil law, see arts
1831 and 1848 C.C.
1G. Fridman, Law of Agency, 4th ed. (1976) 84-5.
1983]
LIVING TOGETHER
2.
The Trust Approach – Resulting Trust 29
The resulting trust has enjoyed a certain popularity as a means of settling
matrimonial property disputes in the common law. As common law jurisdic-
tions did not recognize matrimonial regimes, and treated husband and wife as
strangers where property was concered, 30 the spouse with superior economic
power was allowed to retain the major portion of the household assets free of
any claim by the weaker spouse. If, however, there was any evidence, direct
or indirect, of the spouses’ intention to share the benefits of an asset held in the
name of only one of them, the courts would give effect to that intention by
means of a resulting trust.3″
There was, of course, always a controversy over the nature of the
evidence necessary to raise an inference that the parties intended to share. A
direct cash contribution to the purchase of an asset, however, was almost
always sufficient to give rise to the inference, absent any evidence of a
donative intent. Indirect cash contributions (Denise pays the household ex-
penses from her salary, allowing Paul to make the mortgage payments from
his) were usually accepted, 32 but contributions of labour (Paul buys a run-
down house, Denise alone does all the renovations), even where extensive,
always presented difficulties.33 The reasons for the difficulties will be discus-
sed below.
Once the requisite intent was established, the court would declare that
the spouse with title held the legal title in trust for both parties in the
proportions which they had implicitly agreed upon.’ If we assume, for the
9The term is translated in the Supreme Court Reports as “fiducie par deduction”. See
Pettkus v. Becker, supra, note 2. For a more detailed analysis of the resulting trust, see D.
Waters, Law of Trusts in Canada (1974) 277-322; and McLean, supra, note 18, 157-66.
IOAt least after the Married Women’s Property Act 1882, 45 & 46 Vict., c. 75 (U.K.).
3 See, e.g., Rathwell v. Rathwell [1978] 2 S.C.R. 436, (1978) 83 D.L.R. (3d) 289
[hereinafter cited to S.C.R.]. A mere intent on the part of the party with title to benefit the party
lacking title, unsupported by any consideration or contribution on the latter’s part could not, of
course, give rise to a resulting trust. Such an intent could only be legally binding if it took the
form of a present declaration of trust, by which the party holding title would immediately divest
himself of all or a part of the equitable interest in the property in question. See McLean, supra,
note 18, 158. As to the declaration of trust in general, see Waters, supra, note 29, 125-8 and
141-7. The “intent” which the courts declare they are acting upon will be inferred, if at all, from
some form of contribution by the party without title to the acquisition or maintenance of the
asset in question. See infra, text accompanying notes 32 and 33.
‘See, e.g., Madisso v. Madisso (1975) 11 O.R. (2d) 441, (1975) 66 D.L.R. (3d) 385
(C.A.).
3 See, e.g., Murdoch v. Murdoch [1975] 1 S.C.R. 423, (1973) 41 D.L.R. (3d) 367.
1See, e.g., Rathwell v. Rathwell, supra, note 31 (a fifty-fifty split); and Heseltine v.
Heseltine [1971] 1 All E.R. 952, [1971] 1 W.L.R. 342 (C.A.) (seventy-five per cent to wife,
twenty-five per cent to husband).
McGILL LAW JOURNAL
[Vol. 28
sake of convenience, that the parties had agreed to share equally, then the
party without title would have a fifty per cent equitable or beneficial interest
in the property itself, not just a personal right against the spouse holding title
for the monetary equivalent of that half interest. In the common law system,
establishing a resulting trust is tantamount to saying that the parties hold the
property in common.35 If the property is land, both parties have a right to its
partition, be it physical or by means of sale and division of the proceeds.36 The
only way in which the interest of the party lacking title can be defeated is
through the conveyance of the property by the party with title to a bonafide
purchaser for value without notice.37 Only in this instance is the interest of the
party without title converted into a mere personal action against the party with
title for the value of the property.
It is clear that the resulting trust device avoids many of the more
inconvenient aspects of the partnership approach. The trust can accommodate
a single asset or an entire complex business enterprise without difficulty.
There is no problem with the party holding title binding the other party to third
parties, for trustees are not agents of beneficiaries. The beneficiary will not be
liable for the personal debts of the trustee, and may assert his or her interest
even against the trustee in bankruptcy of the party with title. In the cohabita-
tion context, the move from contract to trust also allows one to ignore any
arguments based upon “illicit consideration”. 8
So far, I have been examining the use of the resulting trust in the
matrimonial context but, as noted at the outset of this paper, the device was
available equally to cohabitees.39 Although the resulting trust doctrine de-
veloped centuries ago without any reference to spouses or quasi-spouses, it
was adapted to the family law context quite readily.4″ Why, then, was it
jettisoned by the legislatures (for married couples) and by the courts (for
cohabitees)?
Judge-made law is often replaced by legislation because the former is not
considered to create sufficiently clear norms capable of regulating the conduct
3 Though, of course, they hold only the equitable or beneficial title in common.
“All the common law provinces have statutes allowing for partition. See, e.g., Partition
Act, R.S.O. 1980, c. 369. Saskatchewan, the Yukon and the Northwest Territories rely upon
the reception of the United Kindom partition statutes.
37For an explanation of these terms, see R. Megarry & P. Baker, Snell’s Principles of
Equity, 28th ed. (1982) 46.
mEven in Dhvell v. Fames, supra, note 25, the Court allowed the “mistress” to recover
amounts which she had paid on account of a mortgage on the property in which she was alleging
an interest, semble, on the basis of a resulting trust.
39 See, e.g., Cooke v. Head, supra, note 25; and Eves v. Eves [1975] 3 All E.R. 768, [1975]
1 W.L.R. 1338 (C.A.).
10Note, however, the criticisms made by McLean, supra, note 18, regarding the doctrine’s
extension to the matrimonial/cohabitation context.
1983]
LIVING TOGETHER
of large segments of society. With the resulting trust doctrine, the problem
was not so much a lack of clarity in the legal rule, as the uncertainty and
inconsistency of its application. 4′ The joint efforts of one couple in their
pursuit of a farming enterprise, for example, could be seen by one court as
clear evidence of a common intention to share the assets of that business 4 2
although the same court, differently constituted, could see similar efforts by
one half of the couple as “the work done by any ranch wife”.43 As soon as one
is obliged to draw inferences from conduct which may have spanned one, two
or three decades, one enters a realm of shifting sands where the proper path is
often a matter of sheer speculation. Less metaphorically, any court seized of
such a matter would have little to guide it except its instinctive reaction to the
plight of the parties. In the context of a cohabitee’s claim, a court might allow
itself to be swayed by unvoiced assumptions about the irregularity of non-
marital unions, and therefore adopt the laissez-faire approach outlined above.
The evidentiary problem, however, was in a sense only a reflection of a
broader issue: the extent to which “women’s work” should be recognized in
the context of marital or quasi-marital relationships. Here was the real
battleground, one which the provincial legislatures were eventually obliged to
enter. While the resulting trust had its uses, the courts were forced to apply it
without any clear legislative statement as to what the balance of power within
marriage (or for that matter, within the cohabitation context) should be. In the
absence of direction on this crucial issue, the resulting trust approach was
bound to give rise to haphazard results.
Moreover, as commentators pointed out,’
the courts were not being
totally honest about what they were doing. Just as courts once insisted that
they merely …. discovered” the common law rather than creating or adapting
it, so they insisted that they were merely “discovering” a pre-existing inten-
tion shared by the parties and giving effect to that intention. In reality, the
courts were imposing a solution based upon the demands of changing social
mores, a solution finally adopted for married couples and refined by the
various provincial legislatures. 5
If the resulting trust device was unsatisfactory from a doctrinal point of
view where evidence of the parties’ common intention was nebulous, there
11 The Supreme Court of Canada finally abandoned the resulting trust approach with regard
to cohabitees in Pettkus v. Becker, supra, note 2, in favour of the unjust enrichment approach.
For a critique of the resulting trust case law, see Waters, comment, (1975) 53 Can. Bar Rev.
366; and Oosterhoff, comment, (1979) 57 Can. Bar Rev. 356.
“2Rathivell v. Rathwell, supra, note 31.
“Murdoch v. Murdoch, supra, note 33, 436, per Martland J.
“See, e.g., Waters, supra, note 40; and Oosterhoff, supra, note 41.
11 By “solution”, I mean the ultimate solution of sharing family assets, not the technique by
which that end was achieved.
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was another potential remedy which did not depend on such evidence: the
constructive trust. 46 Such a trust may be imposed by the court in order to
remedy unjust enrichment, so that the enriched party is deemed to hold the
legal title totally or partially for the benefit of the impoverished party. This
remedy will be examined in Part II, but first I will consider the experience of
Quebec civil law with intention-based remedies for our paradigm situation.
B.
The Civil Law of Quibec
As trusts can arise in Qu6bec only if the required formalities are
observed,48 the only possible remedy based on implied intention which might
be available to Qufbrcois cohabitees is contractual. Although the jurispru-
dence on implied agreements to share property between cohabitees is sparse,
such agreements were often considered in the spousal context, particularly
where the spouses had married under the regime of separation of property. 49 It
is to this area of the law that we now turn.
1.
Innominate Contracts
Although the usual approach to the Paul-Denise imbroglio was to find an
implicit contract of partnership between them,5 0 other options were and are
available to cohabitees in Quebec. Where property was purchased solely in
the name of one party, if the proceeds came from a joint bank account to
4Translated in the Supreme Court Reports as “fiducie par interpretation”. See Pettkus v.
Becker, supra, note 2.
4 Such has been the state of the law in the common law provinces since the decision in
Pettkus v. Becker, ibid. Prior to that decision, the constructive trust was not viewed as a general
remedy for unjust enrichment but only for particular examples of it, usually where a fiduciary
relationship had been abused. The latter view still prevails in England and Australia (see, e.g.,
Allen v. Snyder [1977] 2 N.S.W.L.R. 685 (C.A.)), although it has long been jettisoned in the
United States. See A. Scott, The Law of Trusts, 3d ed. (1967), vol. 5, 462.
4’Article 981a C.C. incorporates the formalities required for gifts inter vivos or wills.
“9Until recently there has been a major difference of opinion between doctrine and jurispru-
dence on the question of the legitimacy of spousal partnerships. The generally negative attitude
of most doctrinal writers stood in vivid contrast to the more tolerant and pragmatic view
illustrated by many court decisions. It was not until relatively recently that the arguments for
the validity of spousal partnerships were put forward. Marceau, Le contrat de socidtd entre
mari etfemme (1959) 19 R. du B. 153. See now, Comtois, La liquidation de la sdparation de
biens (1981) 84 R. du N. 34; and Hdleine, Le contrat de socidtd entre dpoux: d’hier d
aujourd’hui (1981) 15 R.J.T. 357. It is still possible, however, for a major text in this area (H.
Caparros, Les Rdgimes Matrimoniaux, 2d ed. (1981)) to avoid making any reference to the
jurisprudence on implied partnerships and similar devices.
ISee infra, Part II(B)(2).
19831
LIVING TOGETHER
which both had contributed, it might be inferred that both parties were to be
co-owners. 5′ The party lacking title could demand partition, or a share of the
proceeds if the property had already been sold. A similar device is the contrat
de pr~te-nom, where A alleges that property purchased by B was really
purchased wholly or partly on A’s behalf.52 While both devices share the
advantage that no affectio societatis need be proved,53 they suffer from two
drawbacks. First, absent an express contract, serious problems of proof will
probably arise. Secondly, these devices work well only where one is dealing
with contributions made in the form of fairly substantial sums of cash. It
would be very difficult to imagine an agreement to become co-owners of
property where one party’s contribution is mainly in the form of services
rendered after the date of acquisition.
2.
Implied Contract of Partnership (Socit6 de Fait)
If parties marry under the regime of separation of property, then in
theory, their patrimonies remain distinct until the day the marriage is dis-
solved or until they change their regime, at which time assets are awarded to
the spouse who can prove ownership. Failing proof of ownership by either
spouse, an asset will be held in indivision by both.’ The reality of marriage,
though, does not conform to the watertight compartments of theory. Assets
are sometimes financed by the funds of one spouse but put in the name of the
other. Unremunerated labour flows from patrimony to patrimony, enabling
one spouse to acquire or improve property. In short, on the day of dissolution,
a spouse who had contributed roughly half of the parties’ common capital
might be left with very little. Having decided to abandon the conjugal bed, the
parties were still obliged to share the Procrustean bed of their marriage
contract in order to settle their disputes over property.
Or were they? In a number of cases, courts were able to find that spouses
had established a type of partnership within the larger context of their regime
of separation of property.5 The partnership might relate to a particular asset56
“1 See, e.g., Charlebois v. Sabourin [1977] C.S. 349. Although the decision of MajorJ. was
overturned by the Court of Appeal (sub nom Sabourin v. Charlebois, C.A. (Montrdal,
500-09-000 952-770) 1 June 1982), the majority did not quarrel with his view of the law. They
merely differed upon the question whether the plaintiff had satisfied the burden of proof.
“See, e.g., Bliziotis v. Salemandras [1963] C.S. 485.
“As must be shown in order to prove a tacit partnership. See infra, Part II (B)(2).
‘4Article 520 C.C.Q. (old art. 1439 C.C.).
51See, e.g., Cantin v. Comeau [1972] C.A. 523; Voyer v. Gilbert, C.S. (Chicoutimi,
150-05-000 445-77) 28 May 1979; Labelle v. L~gar6 [1978] C.S. 1033; and Invernizzi v. du
Crest [1982] C.S. 418. Although, in theory, such partnerships might have been found in the
context of any type of matrimonial rdgime, in practice, cases almost invariably involved parties
married under the separation of property regime. See Hdleine, supra, note 49.
561n Cantin v. Comeau, ibid., both spouses contributed money toward the building of a
boarding house as well as labour in its operation.
McGILL LAW JOURNAL
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or to the totality of goods acquired during marriage.” Because the Civil Code
prescribes no particular formalities for such partnership agreements, it was
possible to infer the requisite intention of the parties from their conduct. It was
never totally clear whether the courts thought they were dealing with the
partnership regulated by art. 1830 et seq. of the Civil Code, for they usually
evaded the issue by referring to “de facto partnerships”, “sui generis part-
nerships”, or even (ex abundante cautela, no doubt), a “socigtg sui generis de
fait”.8 On occasion, however, judges did have recourse to some of the Civil
Code’s dispositions regarding partnerships 59 or commented that there was no
distinction on a particular point between de facto partnerships and part-
nerships in generalY
There were always doubts whether such partnership agreements were
valid between husband and wife,6′ but as the objections were based upon
certain characteristics of the marital relationship, they did not apply to
cohabitees. Cohabitees had to face a different obstacle: the allegation that any
such contract between them was void, being founded on an illicit cause.
Doctrinal writers have usually maintained that property-sharing agreements
between cohabitees are void because their purpose is to compensate for the
rendering of sexual services .6 Although this view may have had some support
in the case law, 63 it has now been rejected implicitly by the Qu6bec Court of
Appeal.’ As the concept of public order and good morals in the Civil Code is
respective shares in marital partnership of a restaurant business).
“7Labelle v. Ldgard, supra, note 55.
581bid., 1035.
59See, e.g., Invernizzi v. du Crest, supra, note 55 (art. 1848 C.C. applied to determine
16 See Alary v. Vaillancourt [1977] C.S. 81.
61Prior to the reform of 1964 (An Act respecting the legal capacity of married women, S. Q.
1964, c. 66), it was uncertain whether a married woman, even separate as to property, had
capacity to enter such a contract. The traditional French position condemned the husband-wife
partnership as an impermissible variation of the marital regime (immutable until 1965) as well
as an interference with the husband’s pre-eminent position within the family (old art. 1388
Code Napoleon). If the partnership had actually existed, however, it would be dissolved “en
iquit6” in so far as it did not contradict the marriage contract. See Marceau, supra, note 49,
155-6. Although the Qu6bec jurisprudence was more indulgent in this regard than the French
(see the authorities cited by Marceau, at 172-3), the cases were by no means unanimous. See
Accessoires de Cuisine LtDe v. Page [1953] R.L. 208, 217 (C.S.) (“Consid6rant que la
d6fenderesse ne pouvait s’engager pour son mari ni former une soci~t6 avec lui …. ..”)
“2 See, e.g., Ciotola, Aperu des conditions illicites et immorales (1970) 72 R. du N. 315,
328; and R. Demogue, Traits des obligations en gingral (1923), t. II, no 804.
63Some of the older jurisprudence on the nullity of legacies to concubines (see, e.g.,
Vaudreuil v. Falardeau [1950] R.P. 193 (C.S.)) could easily have been applied to avoid
contracts between parties living in concubinage.
“Richard v. Beaudouin Daigneault, C.A. (Montral, 500-09-000 582-791) 13 January
1982. Although a majority of the Court did not find sufficient evidence of a partnership
agreement, all three members of the Court admitted that such an agreement was possible
1983]
LIVING TOGETHER
fluid and not static, the two lines of jurisprudence should not be seen as
inconsistent. They simply represent an evolution of attitudes over time.
Let us look more closely at the nature of these implied partnerships
between spouses separate as to property, and between cohabitees. The facts in
the cases on the subject bear a depressing resemblance to the common law
cases on resulting trusts. All are variations on the Paul and Denise theme, with
one exception: the female partner’s contributions often take the form of labour
rather than cash. Where cash has been contributed, there is generally no
problem recovering it because gifts traditionally were forbidden between
spouses and concubines. 5 In any case, gifts are not presumed: if the alleged
donee fails to prove the requisite liberal intent, the “cause” of the contribution
must be some type of promise to repay. Here one must answer the following
question: Was the contribution made as a loan, to be repaid with or without
interest, or was it to serve as partnership capital, entitling the contributor to its
return with the appropriate share of profits? In the absence of any written
agreement, one is left again in the realm of inferences drawn from conduct.
Although the conbtributor will at least recover his or her capital (providing the
other party is still solvent), the difference between the two approaches may be
substantial where the assets in question have increased significantly in value.
Finding a partnership will, of course, give rise to a type of in rem action
allowing each party to share in the capital appreciation of partnership assets.
A loan only entitles the lender to an in personam action against the borrower
for non-payment.
There may be another explanation for cash contributions by spouses or
cohabitees to the “common pool” –
the satisfaction of household ex-
penses.66 While marriage contracts traditionally specified that the husband
alone would bear all the household expenses, they also stipulated that the wife
could not recover whatever she did actually contribute. Where wives made
fairly substantial cash contributions which were used by the husband to
acquire the matrimonial home or other immovables, it was held generally that
such contributions were not made simply to defray household expenses.
Although there is officially no obligation between cohabitees to share house-
between concubines. In France, too, the jurisprudence has admitted’the possibility-of tacit
partnerships between cohabitees. See H., L. & J. Mazeaud, Legons de droit civil, 6th ed. (M.
Juglart 1976), t. I, vol. III, no. 708.
Article 1265 C.C., abrogated by An Act respecting matrimonial regimes, S.Q. 1969, c.
77, s. 27. The old art. 768 C.C. allowed gifts between concubines only in so far as they did not
exceed maintenance.
‘See Comtois, supra, note 49, 41-2.
6
1See Brire, Les charges du mariage (1967) 2 R.J.T. 451; and Charlebois v. Sabourin,
supra, note 51 (contributions by both spouses to joint bank account; home and other immove-
ables acquired in husband’s name; wife’s contributions not attributable to her share of domestic
expenses). The Court of Appeal agreed with the trial judge on this point.
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[Vol. 28
hold expenses, in practice the courts assume that they will look after their own
domestic needs08
It is when one considers the impact of services rendered between spouses
or cohabitees that the greatest controversy arises. Although, in theory, the
preceding account of the law should be valid for contributions either in cash or
services,’ 9 in practice, the distinction assumes great importance. Courts are
much more likely to assume that services rendered by one partner are simply
contributions to household expenses.”0 Where married couples are
concerned, there is often a tendency to dismiss summarily such contributions
with the observation that the parties who choose separation of property are
aware of the risks involved.7″ Cohabitees too, are deemed to know the risks
they assume.7 2 Such an approach simply begs the question. The “risks” are
there only in so far as the court refuses to use the various legal techniques at its
disposal to get rid of them. In order to establish an implicit partnership based
on the provision of services, a wife had to prove either that her efforts during
the marriage were superhuman,7a or that she had contributed cash as well as
services.”
Another control device which restricts the use of the defacto partnership
is the concept of certainty. A partnership, like any other contract, must have
sufficiently clear terms before it can be enforced. Presumably the respective
contributions of each partner must be capable of ascertainment at the outset.
There are obvious problems in satisfying this requirement where one is
” And hence cannot usually claim support from ex-spouses or spouses from whom they are
judicially separated. See Lajoie v. Therrien [1971] C.A. 493;Michaudv. Bernier [1976] C.A.
469; Trudel v. Racine-Trudel [1977] C.A. 51. Cf. Rochefort v. Blanchard [1978] C.A. 382; A.
Mayrand, “L’obligation alimentaire entre 6poux srparrs ou divorces depuis le bill 8 et la loi
frdrrale sur le divorce” in Lois nouvelles 11 (1970); and H6leine, supra, note 16.
69 Comtois, supra, note 49, 43 seems to suggest that a monetary contribution is necessary,
but it is difficult to see why, in principle, this should be so. In Cantin v. Comeau, supra, note
55, the majorpart of the wife’s contribution was clearly in her work. Why should it matter if she
contributed no cash? An older line of cases allowed claims by the wife where she had
contributed only her labour. See, e.g., Champagne v. Gougeon (1939) 77 C.S. 76. Article
1830 C.C. obliges partners to contribute “property, credit, skill, or industry” [emphasis
added]. While the French version uses “et” in the Wilson and Lafleur edition, the original text
uses “ou”.
701n the marital context, seeLebrun v. Rodier [1978] C.A. 380. Forcohabitees, seeRichard
v. Beaudouin Daigneault, supra, note 64. Cf. the now-infamous statement of Martland J. in
Murdoch v. Murdoch, quoted supra, text accompanying note 43.
71 See, e.g., Lebrun v. Rodier, ibid.
‘As was the case in Richard v. Beaudouin Daigneault, supra, note 64, per Lajoie J.A.
73See, e.g., Labelle v. Ldgarj, supra, note 55. There are grave doubts, however, as to the
propriety of making an award based upon a defacto partnership during divorce proceedings, as
Jasmin J. did.
7’As in Cantin v. Comeau, supra, note 55.
1983]
LIVING TOGETHER
inferring the existence of a partnership from a series of actions spread over a
period of time, particularly where one party’s contributions are mainly in the
form of services. This fact should not be an insuperable obstacle however,
because there are many commercial partnerships where one partner contrib-
utes only cash and the other only skill or industry. But the fact remains that a
punctilious attitude towards the certainty issue will inevitably cause an
alleged partnership to collapse like a house of cards.75 Indeed, after cases such
asBeaudouin Daigneault, 76 one must speculate whether there could ever be a
tacit partnership which manifested the requisite degree of certainty. The
problem does not lie in the fact that the courts are being over-scrupulous, but
in the inherent unsuitability of the partnership concept as a tool for resolving
these kinds of disputes.
If Denise manages to overcome all these obstacles and establish a tacit
partnership, it is worth remembering that her remedies are more effective than
those available to her if she succeeds in establishing liability based upon
unjust enrichment.77 First of all, if there is no agreement regarding the
respective shares of the parties, each is automatically entitled to fifty per
cent.” This result will virtually always occur if the partnership is based on
inferences from the parties’ actions. Secondly, as noted above, the action pro
socio entitles each partner to a share in the partnership assets, rather than
limiting recovery to a mere personal right against the other partner for the
value of cash or services contributed. The difference between the two
amounts could obviously be substantial if the assets in question have appreci-
ated in value.
In summary, the de facto partnership is a very unsuitable device for
settling property disputes between cohabitees, as it was for couples married
separate as to property. It suffers from exactly the same defect as the common
law resulting trust: the search for an elusive notional common intention
arising from equivocal or incomplete facts. In both systems, the law is
tolerably clear, but its application to concrete fact situations is intolerably
arbitrary. This situation prompted a search for alternatives, to which I now
turn.
“As demonstrated in Richard v. Beaudouin Daigneault, supra, note 64. The dissenting
I.
judge, Par6 J.A., agreed with the observations of the majority on the certainty issue.
76Ibid., especially the remarks of Par6 J.A.
“7Discussed infra, Part
78Article 1848 C.C. See also Invernizzi v. du Crest, supra, note 55. Cf. the common law
approach to constructive and resulting trusts, where the determination of the quantum of each
party’s interest is a question of fact in each case, with (ostensibly) no presumption of equal
sharing. See sources cited supra, note 34.
McGILL LAW JOURNAL
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M. The Unjust Enrichment Approach
A.
Canadian Common Law
As noted above, courts were reluctant to vary the property relations of
spouses or cohabitees in the absence of some agreement between them,
however fictitious, dealing with the allocation of property on termination of
the relationship. This attitude meant that one party might find himself or
herself with virtually no reward for years of labour or for financial contribu-
tions to property owned by the other. In effect, the law was allowing, perhaps
even encouraging, a state of affairs which was increasingly viewed as un-
acceptable by non-lawyers. How was the law to respond to this change in
attitudes? By extending the restitutionary theory of unjust enrichment.
The difficulty with the application of unjust enrichment principles to the
area of family property was the fact that the common law traditionally had
awarded relief only in previously established instances of unjust enrichment. 9
Although Anglo-Canadian law recognized all restitutionary claims as unified
by the principle of unjust enrichment, it did not admit that unjust enrichment
could be a generalized source of obligation.0 The law of restitution was not
applied to proprietary conflicts within marital or quasi-marital relationships
simply because such conflicts did not belong to the traditional province of
restitutionary claims. It took a revolution in this traditional attitude towards
restitution before cohabitees could seek remedies based on unjust enrichment.
This revolution, consummated in Pettkus v. Becker,8 elevated the notion of
unjust enrichment to a generalized head of obligation and enshrined the
constructive trust as its principal remedy. 2 I will now consider various aspects
of the unjust enrichment approach in order to illustrate how it differs from the
intention-based approach.
79Inter alia, where money had been paid under mistake of fact, or as a result of duress, or for
a consideration which had failed totally. See R. Goff & G. Jones, The Law of Restitution, 2d
ed. (1978) 43-5. Following Goff and Jones, this article treats all claims based upon unjust
enrichment under the rubric of “the law of restitution”.
“Goff & Jones, ibid., 13. As to the progression from principle to source of liability, see
Klippert, The Juridical Nature of Unjust Enrichment (1980) 30 U.T.L.J. 356.
“Supra, note 2.
‘2When Dickson J. refers in Rathwell v. Rathwell, supra, note 31, 454 to the constructive
trust as “a third head of obligation, quite distinct from contract and tort” he is, with respect,
confusing the right (or obligation) with the remedy. It is clearly the concept of unjust
enrichment which is the “third head of obligation”, with the constructive trust merely one of the
means by which the obligation may be enforced. See, e.g., Degiman v. Guaranty Trust Co. of
Canada [ 1954] S.C.R. 725, [1954] 3 D.L.R. 785, where the plaintiff succeeded on the basis of
a head of obligation which was neither contract nor tort, but where there was equally no
question of a constructive trust. It is submitted that Mr Justice Dickson’s approach in Pettkus v.
Becker, supra, note 2, is to be preferred to his statements in Rathwell.
1983]
LIVING TOGETHER
1.
The Role of Intention
The main theoretical difference between the resulting trust and the
constructive trust based upon unjust enrichment is that the latter does not
depend upon any evidence of intention.”‘ One might qualify this statement by
adding that, in a constructive trust, only the intention of the enriched party is
clearly irrelevant. He cannot deny the rights of the improverished party by
alleging that he never had any intention that the latter benefit from the
property in question.” However, the intention of the impoverished party may
be relevant in deciding whether the enrichment which occurred was “unjust”,
and whether restitutionary remedies are available at all. In Pettkus v. Becker,
Dickson J. was careful to observe that Rosa Becker had a reasonable expecta-
tion of receiving an interest in the property in question and that Lothar Pettkus
accepted the benefits of her labour under circumstances where he knew or
ought to have known of her expectation.85 If the impoverished party has
contributed to the acquisition of property with the intent of making a gift to the
enriched party, then, of course, there is no “unjust” enrichment. The donative
intention of the impoverished party is sufficient justification for the enrich-
ment which has occurred.86 As long as the impoverished party did not intend
to make a gift, it should not matter how one characterizes the intention with
which he or she conferred a benefit on the enriched party.8 7 Becker’s reason-
able expectations are an aid to finding unjust enrichment, but not a sine qua
non of it. In short, one might say that while the intention of the parties is not
germane to the availability of restitutionary remedies per se, their intent may
be relevant in determining whether an unjust enrichment has occurred in the
first place.
2.
“Subsidiarity” – Common Law vs Equitable Remedies
The prerequisites for unjust enrichment in the common law were identi-
fied by Dickson J. in Pettkus v. Becker88 as an enrichment, a corresponding
3See Pettkus v. Becker, supra, note 2, 843-4.
M1All three Courts in Pettkus v. Becker, ibid., for example, agreed that Pettkus never
intended Becker to have any share in the bee-keeping business in which she was eventualfy held
to have a half share. In the spousal context, see Pratt v. MacLeod (1981) 129 D.L.R. (3d) 123
(N.S.S.C., T.D.).
I’Supra, note 2, 849.
8 See Goff & Jones, supra, note 79, 25. The civil law is identical on this point. See G.
Challies, The Doctrine of Unjustified Enrichment in the law of the Province of Quebec, 2d ed.
(1952) 97; and J. Carbonnier, Droit civil, 7th ed. (1972), t. 4, no. 121.
n See McLean, supra, note 18, 170. One should add the proviso that the benefit must not
have been conferred “officiously”, which will rarely be a problem in the cohabitation cases.
11Supra, note 2, 848. He had set them out first in Rathwell v. Rathwell, supra, note 31,455.
REVUE DE DROIT DE McGILL
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deprivation and the absence of any juristic reason for the enrichment. It
should be noted that there is no requirement, as there is in the civil law, that all
other recourses be previously exhausted. The subsidiary nature of the action
de in rem verso in the civil law leaves open to doubt whether one can even
bring such an action if one cannot meet a prerequisite for another form of
relief.89 There is no such problem in the common law: resulting and construc-
tive trust are pleaded freely in the altemative, 90 as are contract and restitution.
It might be said, however, that the constructive trust is “subsidiary” in a quite
different sense than the civil law would understand the term. Once it has been
determined that an unjust enrichment has occurred, the court must decide
whether a common law or an equitable remedy will be imposed. The common
law remedy will normally be a personal action of some sort, 9′ and the
equitable remedy the constructive trust, but equitable remedies are available
traditionally only where common law remedies would be “inadequate”. 92 It is
worth lingering over this point, because it is noticeably absent from the
judgment of Dickson J. in Pettkus v. Becker. The court found that the unjust
enrichment of Pettkus lay in his acceptance of Becker’s labour over a period
of some fourteen years. Why was the appropriate remedy not a quantum
meruit claim, in which Becker would have been awarded a reasonable
remuneration for her services 93 and not a half share of the business? Here a
closer examination of the facts becomes necessary. Dickson J. accepted the
view taken by Wilson J.A. of the Ontario Court of Appeal, who noted that
“[Becker] not only made possible the acquisition of their first property in
Franklin Centre during the lean years, but worked side by side with [Pettkus]
for fourteen years building up the beekeeping operation which was their main
source of livelihood”.’
In other words, the value to Pettkus of Becker’s
services was not simply the market value of her labour, because, had he hired
someone else to take her place, he would not have been able to set aside the
savings necessary to acquire the properties in question. The common law
quantum meruit remedy would be inadequate because it would not represent
the real value of the services which Becker rendered. The best yardstick for
‘9See discussion infra, Part II(B)(1).
9″As they were in Pettkus v. Becker, supra, note 2. See also Pratt v. MacLeod, supra, note
84.
” E.g., the action for money had and received where payment is made under mistake or
compulsion; quantum meruit, for reasonable remuneration for services rendered; quantum
valebat, for a reasonable price for goods supplied to the defendant.
‘2See H. Hanbury, R. Maudsley & J. Martin, Modern Equity, 11th ed. (1981) 38. The
distinction arose out of the division ofjurisdiction between the courts of common law and those
of the Chancery.
‘9This is the approach that the civil law would take at present if the claim were based upon
unjust enrichment. See discussion infra, note 128.
“(1978) 26 O.R. (2d) 105, 108, (1978) 87 D.L.R. (3d) 101 (C.A.) [emphasis added].
19831
LIVING TOGETHER
measuring the value of her labour would be the value of the business which
that labour had helped to create. This reasoning is not made explicit in Pettkus
v. Becker but it is submitted that it is the correct justification for the result
reached.95
There may be cases where the contributions of one cohabitee are not
important enough to demand the imposition of a constructive trust. If one
partner already owned a business which was operating as a going concern
when cohabitation commenced, then the proper remedy for a partner who
subsequently worked in the business without remuneration would probably be
quantum meruit. The important thing to remember is that there is a choice of
remedies for unjust enrichment in the cohabitation context, and these re-
medies can be tailored96 to achieve justice in the particular case. This fact
deserves to be stressed because of the tendency to equate unjust enrichment as
a head of obligation with only one of its possible iemedies –
the constructive
trust. 97
3.
The Nature of the Cohabitees’ Relationship
Must the cohabitees’ relationship exhibit any particular characteristics
before a restitutionary claim is available to one of them? Although in Pettkus
v. Becker9” the relationship lasted almost twenty years, in principle there
95 This approach to the interrelationship of common law and equitable remedies is somewhat
unorthodox in that it suggests that the “inadequacy” threshold to equitable remedies is largely
pass6. After all, Dickson J. does not even consider whether a common law remedy would have
been adequate. His approach is, however, consistent with the modem trend to avoid the niceties
of traditional law-equity distinctions and to grant remedies, regardless of their origin, accord-
ing to the justice of the case. See, e.g., McLean, supra, note 18, 173; Girard, book review,
(1981) 19 U.W.O.L. Rev. 381, 385; and United Scientific Holdings Ltd v. Burnley Borough
Council [1978] A.C. 904, 924-5, [1977] 2 All E.R. 62, per Lord Diplock. The “inadequacy”
threshold could always be resurrected as a control device, however, should the constructive
trust prove to be too unmanageable a remedy. See Klippert, supra, note 80, 413.
9Subject to my observations in the preceding notes.
97 As mentioned supra, note 82, even Dickson J. was guilty of conflating the right with the
remedy in Rathwell v. Rathivell, supra, note 31. In few of the cases which follow Pettkus v.
Becker, supra, note 2, is it made clear that there is, in fact, a choice of remedies; the courts
impose a constructive trust or deny all remedy. See McCauley v. Simpson (1981) 26 B.C.L.R.
384 (S.C.); Murray v. Roty (1982) 36 O.R. (2d) 641 (H.C.); Shupbach v. Rambo (1981) 26
B.C.L.R. 154, (1981) 10 E.T.R. 305 (S.C.); Rochon v. Emary (1981) 26 B.C.L.R. 119
(S.C.); and Niederberger v. Memnook, supra, note 11. Two exceptions are Kelly v. Bourne
Estate (1981) 50 N.S.R. (2d) 226 (C.A.), affjg (1981) 45 N.S.R. (2d) 167 (S.C., T.D.); and
Yohnke v. Thomson Estate (1981) 14 Sask. R. 129 (Q.B.) where an alternative claim in
quantum meruit is considered briefly before being rejected by the Court.
98Ibid.
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should be no magic in the duration of the relationship. In McCauley v.
Simpson” the parties cohabited for only five years. MacDonald L.J.S.C.
observed that “[t]here has either been unjust enrichment, or there has not
been, and this can take place in five years, ten years, or twenty years”.”I He
found that the relatively brief period of cohabitation did not prevent the
impoverished party from alleging unjust enrichment, 0′ but the brevity of the
period, among other factors, was relevant to the determination of the quantum
of interest to be awarded to the impoverished party. In the end, he imposed a
constructive trust upon a twenty per cent interest in the relevant property.
Nor should there be any magic in the phrase “tantamount to spousal”
used by Dickson J. to describe the relationship in Pettkus v. Becker. If unjust
enrichment is truly based upon the three objective factors outlined by Mr
Justice Dickson in Rathwell, 102 then restitutionary remedies should be avail-
able to parties cohabiting in any number of arrangements, regardless whether
they behave as man and wife. Homosexual unions should not be treated any
differently, nor, for that matter, should three unmarried siblings who inhabit a
common house and share their resources but have no sexual relationship inter
se at all. 03 The “spousal” element is germane only to the unjust nature of the
enrichment. If, as in Pettkus v. Becker, the parties have been living together
as man and wife, it is easier to label Pettkus’ enrichment as “unjust” because it
99Supra, note 97.’
IIbid., 393.
” In Niederberger v. Memnook, supra, note 11, another case involving a five-year period of
cohabitation, Bouck J. insisted that the relationship be a “lengthy” one before unjust enrich-
ment could be alleged. His remarks were obiter as he found that there was no enrichment in any
case, and it is submitted that Mr Justice Bouck’s comments on this point should be approached
with caution. It is the contribution by the impoverished party and corresponding inflation of the
enriched party’s patrimony that triggers the doctrine of restitution, not the time period over
which those events occur.
The “lengthy” relationship qualification remains popular, however. See Murray v. Roty,
supra, note 97 (seven to eight years sufficiently “lengthy”); and McLeod, annotation, (198 1)
19 R.F.L. (2d) 165. Dickson J. probably did not have any magic figure in mind when, in
Pettkus v. Becker, supra, note 2, 850, he spoke of “informal relationships which subsist for a
lengthy period”. In the next sentence he went on to state that the liaison in issue was no “casual
encounter”, and it is submitted that it is this qualitative difference, rather than any temporal
distinction, which is relevant in determining whether unjust enrichment has occurred.
“‘See supra, note 88 and accompanying text.
“‘The applicability of resulting trust doctrines to any two or more parties living in
homosexual, heterosexual or asexual unions was confirmed in Australia by the New South
Wales Court of Appeal. SeeAllen v. Snyder, supra, note 47. The Court found that constructive
trusts could not be imposed in such unions because of the lack of a fiduciary relationship
between the parties, not because of the “illicit” nature of extra-marital liaisons. I am indebted to
my colleague Professor W.H. Holland for bringing this case to my attention. See also Deech,
The Case against Legal Recognition of Cohabitation (1980) 29 Int’l & Comp. L.Q. 480, 485.
1983]
LIVING TOGETHER
contradicts the reasonable expectations of the impoverished party. However,
there are undoubtedly many non-spousal situations where the enrichment
would be equally “unjust”. If the facts in Pettkus had been identical but the
parties had been homosexuals, or brother and sister, would the enrichment
have been any less unjust? Logically speaking, the answer must be –
no.
There is one area, however, where the legal consequences of cohabita-
tion may have an impact upon claims relating to unjust enrichment. In some
provinces, a support obligation exists between cohabitees during
cohabitation;” it may subsist even after the parties cease to cohabit. May an
“enriched” cohabitee argue that any contributions in labour or money made by
the other were made to acquit this obligation and hence did not give rise to
unjust enrichment? If the enrichment is relatively modest, this argument
might succeed.” 5 On the other hand, if one party has been able to parlay the
other’s contribution for household expenses into a substantial amount of
property, then, by definition, those contributions must have exceeded con-
siderably what was necessary for the maintenance of the household. In such
cases, a restitutionary claim should still be possible.
The nature of the cohabitees’ relationship then, has very little impact
upon the application of unjust enrichment principles. Although the emer-
gence of unjust enrichment as a generalized, independent source of liability in
Canadian common law occurred in a case dealing with cohabitees, it can be
seen readily that Pettkus v. Becker is simply one example of the potentially
vast realm of application of unjust enrichment principles.’06
’04See the Family Relations Act, R.S.B.C. 1979, c. 121, s. 57; the Family Law Reform Act,
R.S.O. 1980, c. 152, s. 15; the Family Maintenance Act, S.M. 1978, c. 25, s. 2; The
Maintenance Act, R.S.N. 1970, c. 223, as am. by The Maintenance (Amendment) Act, 1973,
S.N. 1973, No. 119, s. 5 (adding new s. 1OA); the Family MaintenanceAct, S.N.S. 1980, c. 6,
s. 3 [the Act appears in the Consolidated Statutes of N.S. as c. F-22]; An Ordinance to Amend
the Matrimonial Property Ordinance, R.O.Y.T. 1980 (2d), c. 15, s. 30.6(1); the Child and
Family Services and Family Relations Act, S.N.B. 1980, c. C-21. For commentary, see
Holland, supra, note 1, 102-18.
‘ Niederberger v. Memnook, supra, note 11, might be explained on this basis. The
contributions of the male party in that case amounted to little more than the cost of room and
board, and hence could be seen simply as his share of household expenses.
,o6Recently, courts have begun to apply restitutionary principles between husband and wife
in those provinces where matrimonial property statutes have left gaps. In Ontario, for example,
the Family Law Reform Act, R.S.O. 1980, c. 152, s.4, does not mandate sharing of family
assets where one spouse dies. The Ontario Court of Appeal decided recently in Kiss v. Palachik
(1981) 34 O.R. (2d) 484, (1981) 130 D.L.R. (3d) 246 (leave to appeal to the Supreme Court of
Canada granted 17 December 1981; judgment rendered 17 May 1983) that a widower might
establish an extra-statutory constructive trust against the estate of his deceased wife where he
had contributed labour and money to property registered solely in her name. See also Pratt v.
McLeod, supra, note 84, where one spouse died before the Nova Scotia Matrimonial Property
Act, S.N.S. 1980, c. 9 [the Act appears in the Consolidated Statutes of N.S. as c. M40] came
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4.
Evaluation of the Unjust Enrichment Approach
In Pettkus v. Becker,” Dickson J. cited the observation of the Supreme
Court of California in Marvin v. Marvin ” that the constructive trust was
available to give effect to the reasonable expectations of the parties, and to the
notion that unmarried cohabitants intend to deal fairly with each other. If
“reasonable expectations” are indeed a crucial issue, one might well ask
whether any progress has been made at all. Have the courts simply reproduced
the resulting trust under another name, pulling the same rabbit out of a
different hat, as it were? Although it is still rather early to make predictions
(Pettkus was only handed down on 18 December 1980), the answer would
seem to be –
no. There already have been numerous cohabitee cases which
have applied Pettkus,’19 and, as yet, there has been no backsliding from
“reasonable expectations” to “common intention”. Reasonable expectations
are, after all, a matter of policy rather than evidence. An impoverished
cohabitee does not have to prove that his or her reasonable expectations were
frustrated in order to succeed; the courts now assume that inherent in the
relationship of cohabitees is the notion of fair dealing. Neither party is
deemed to intend to exploit the other economically, hence the burden is on the
enriched party to explain any increase in his or her patrimony which seems to
have been gained at the expense of the other. This approach demonstrates a
marked contrast with the resulting trust approach, where the party without
title had to show that a common intention to share could be gleaned from the
parties’ conduct. Freed from the shackles of common intention, lower courts
seem to be applying unjust enrichment principles in a manner consistent with
the spirit of Pettkus v. Becker.”‘
Is the unjust enrichment approach susceptible to criticism from another
point of view? Does it, as Martland J. feared, “clothe judges with a very wide
power to apply… ‘palm tree justice’ without the benefit of any guidelines”?”‘
Once again, if one examines the jurisprudence subsequent to Pettkus v.
into force. TheAct was held not to be retroactive, but the widow was granted a one-half interest
in the matrimonial home on the basis of the common law of unjust enrichment. For a general
survey of the interaction of matrimonial property statutes and the law of restitution, see
McLean, supra, note 18, 178-83.
1TSupra, note 2, 850.
1-557 P. 2d 106 (1976).
“I See, e.g., McCauley v. Simpson, supra, note 97 (an eighty-twenty per cent division);
Murray v. Roty, supra, note 97 (a sixty-forty per cent division of one piece of property, an
eighty-twenty per cent division of another); Shupbach v. Rambo, supra, note 97 (a seventy-
thirtyper cent division of house and sailboat); andRochon v. Emary, supra, note 97 (fifty-fifty
per cent division).
“See the cases cited ibid.
“‘Pettkus v. Becker, supra, note 2, 859.
19831
LIVING TOGETHER
1001
Becker, the answer would appear to be –
no. Judges do not seem to be
lamenting the absence of guidelines, or throwing up their hands in despair at
the confused state of the law. In fact, if Martland J. had analysed the existing
law more closely, he could have identified many control devices which
delimit the parameters of remedial relief available in cases of unjust enrich-
ment. Indeed, when an Ontario trial court judge purported to reduce the whole
law of restitution to the question whether the result reached in any particular
case was “in accordance with good conscience”,”‘
the Court of Appeal
retorted: “If this were a true statement of the doctrine then the unruly horse of
public policy would be joined in the stable by a steed of even more unpredict-
able propensities”. 3 The Court proceeded to enumerate, without claiming to
be exhaustive, the various control devices which mark the boundaries of the
law of restitution.” 4 As a final rejoinder to those who would equate unjust
enrichment with uncertainty, one could reiterate the observation of Goff and
Jones that “[t]he search for principle should not be confused with the defini-
tion of concepts”.” 5
B.
The Civil Law of Qubec
Given the long history of unjust enrichment as a separate head of
obligation in the civil law,” 6 it is perhaps surprising that the occasion has
seldom arisen for its application to cohabitees. In France, the doctrinal writers
have remained adamant that the action de in rem verso cannot apply between
cohabitees. Their attitude seems to be based purely and simply on a policy of
discouraging the union libre wherever possible because of its “destabilizing”
influence on family life and society in general.”‘ While attitudes in Qu6bec
towards cohabitees are more relaxed, there seems to be some resistance to the
idea that unjust enrichment principles may apply between them. This resist-
ance is based partially upon doctrinal difficulties and partly upon the reluct-
ance of courts to get involved in property disputes between cohabitees. I will
consider first the theoretical difficulties involved in adopting the unjust
enrichment approach.
“2Nicholson v. StDenis (1974) 4 O.R. (2d) 480,486, (1974)48 D.L.R. (3d) 344 (Dist. Ct)
per Gould D.C.J.
MacKinnon J.A.
“‘Nicholson v. StDenis (1975) 8 O.R. (2d) 315,317, (1975)57 D.L.R. (3d) 699 (C.A.)per
‘4For a more synthetic approach, see Klippert, supra, note 80, 371-6.
“15Goff & Jones, supra, note 79, 11.
“6 See Challies, supra, note 86, ch. 1. See also the review undertaken by Beetz J. in Cie
Immobiliare Viger Ltde v. Laurdat Gigure Inc. [1977] 2 S.C.R. 67, 75-7.
“7 See, e.g., Mazeaud, supra, note 64, no. 706; and G. Marty & P. Raynauld, Droit civil
(1956), t. 1, no. 679. The jurisprudence has also maintained a very severe attitude towards the
union libre.
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1.
Subsidiarity
While unjust enrichment is a generalized source of obligation in the civil
law, there has always been some apprehension on the part of jurists that it
would overwhelm or subsume all other categories of obligation if strict limits
were not set upon its availability. It is for this reason that most doctrinal
writers agree that claims based on unjust enrichment are “subsidiary”.
However, the concept of subsidiarity varies considerably. Certain authors
claim that the action de in rem verso is subsidiary because it is essentially a
judicial creation, and in a civilian system, the superiority of the lex scripta
must always be maintained. ” To this argument, Ren6 Demogue has replied
that there is no dichotomy between the droit d’9quitj and the droitformel: the
two form but one system of law.” 9 A more common view of subsidiarity is that
the action de in rem verso is allowed only when the plaintiff has no action
based on a contract, quasi-contract, delict, or quasi-delict.10 Here, however,
one must ask why the plaintiff has no such action. If the plaintiff would have
had a valid contractual claim, but has failed to prove a necessary element of it,
or has let her claim become prescribed, then she equally will be forbidden
from exercising a recourse based on unjust enrichment.’ The Cour de
cassation adopted this view in its most stringent form in a case where a man
had effected considerable improvements to an apartment belonging to his
mistress. When his mistress refused to pay him after their separation, the
court rejected his action de in rem verso because it was not impossible for him
to have kept a written record of their agreement. As he had not done so, he was
trying to supplement his defective action in contract with a claim based on
unjust enrichment, and such a procedure is not permitted. Other writers take a
much more lenient view of subsidiarity, or deny its existence altogether,
saying that as long as there is no evasion of the law, the action de in rem verso
should be allowed. 12
” ‘See, e.g., Rouast, L’Enrichissement sans cause et Ia jurisprudence civile (1922) 21 Rev.
trim. dr. civ. 35, 104. Presumably the basis for this view was theBoudier decision, Cass. Civ.
lre, 15 juin 1892, D. 1892.1.596, wherein the Cour de cassation noted that “cette action…
n'[a] 6t6 r~glementde par aucun texte de nos lois”.
“19Supra, note 62, t. I1, no. 78.
110See Cass. Civ. 16re D.1920.I.102; and Mazeaud, supra, note 64, 5th ed. (M. Juglart
M See Carbonnier, supra, note 86, nos 120 and 121; and Mazeaud, ibid., 6th ed. (M. Juglart
1973), t. II, vol. I, no. 706.
1976), t. II, vol. I, nos 707-9.
‘Cass. Civ. 3e, 29 avril 1971, Gaz. Pal. 1971.1.554.
‘See, e.g., G. Ripert & J. Boulanger, Trait de droit civil (1956), t. 7, no. 764. Challies,
supra, note 86, 142 states that he”can see no justification for treating the action de in rem verso
alone of all actions as a sort of legal ‘poor relation’ which cannot coexist with another type of
action”.
1983]
LIVING TOGETHER
1003
All of these views have been adopted at one time or another by the courts
of Quebec or the Supreme Court of Canada. 124 Mr Justice Beetz has recently
minimized the importance of the subsidiarity requirement ” while the Quebec
Court of Appeal has insisted upon the strict view in a recent case dealing with
cohabitees. 26 The point of this review is not to put forth the “true” version of
the subsidiarity requirement, but to indicate that as long as the current
controversy continues, the unjust enrichment approach will be an unsatisfac-
tory basis for resolving property disputes between cohabitees in Quebec. The
current state of the law involves a classic dilemma: a cohabitee cannot allege
unjust enrichment because her “real” recourse is contractual (the tacit part-
nership) and to allow her to do so would infringe the subsidiarity rule, but the
degree of certainty required to prove the tacit partnership ensures that she will
almost always fail! 27 Despite the theoretical availability of the unjust enrich-
ment approach, the number of obstacles which must be overcome in order to
succeed make it unavailable in practical terms. 2 ‘
2.
Remedies for Unjust Enrichment
Here one finds major differences between the common law and the civil
the constructive
for many unjust enrichment situations, the civil law recognizes only a
law. While the common law favours an in rem remedy –
trust –
12 See, e.g., Pelletier v. Russell [1974] C.S. 113 (alternative claim in unjust enrichment
possible where plaintiff has inadequate evidence to prove the existence of a commercial
partnership); Robillard v. Robillard (1935) 41 R.L. 346 (S.C.) (an alternative claim in unjust
enrichment was possible where plaintiff was unable to produce written proof of a civil contract
concerning a sum in excess of fifty dollars, in contravention of the requirements of art. 1233
C.C.); and Orrell v. Tkachena [1942] B.R. 621 (natural parents not allowed to bring an action
de in rem verso against the person responsible for the death of their child, to recover sums
expended on medical services, etc., despite the fact that art. 1056 C.C. excludes natural parents
as beneficiaries of a wrongful death action).
t”Cie Immobilidre Viger LDe v. Laurat Gigudre Inc., supra, note 116, 77.
‘rRichard v. Beaudouin Daigneault, supra, note 64.
I Crudely phrased, this is the reasoning of the majority in Richard v. Beaudouin Daig-
neault, ibid.
‘The unjust enrichment approach has succeeded, however, in at least one reported case.
See Paul v. Les Hiritiers de Harold William Collins [1977] C.S. 191, but the subsidiarity issue
was not argued (female cohabitee worked without remuneration for five years in laundry
business owned by male partner; recovery of value of services allowed against his estate on
basis of unjust enrichment). Subsidiarity is only the major obstacle. Another difficulty which
sometimes arises is the characterization of payments made or services rendered by one
cohabitee as her share of the household expenses. The argument is similar to that presented
supra, text accompanying notes 69 and 70, in the context of the defacto partnership. Here the
satisfaction of the obligation to share household expenses is said to be the “cause” of the
enrichment, negating the “unjust” element. The same observations can be made here as were
made supra, text following note 105.
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personal action against the enriched party for the amount of the enrichment.
This approach means that the impoverished party can seldom share in any
subsequent increase in value in the property to which she has contributed. If
the enrichment takes the form of property which is subsequently sold, the
impoverished party cannot “follow” it into the hands of a third party who takes
with notice, as can the beneficiary of a constructive trust. 2 9 More importantly,
if the enriched party goes bankrupt while still in possession of the property,
the impoverished party ranks only as a general creditor in the civil law,3 0
while her proprietary interest is insulated from the bankruptcy by virtue of the
common law. Finally, the civil law imposes a ceiling on the amount recover-
able by the impoverished party: in no case may it exceed the amount of the
impoverishment.’ The common law recognizes no ceiling where the con-
structive trust is concerned. If the personal remedies are chosen (quantum
meruit or quantum valebat) then of course the “ceiling” will be the reasonable
value of the goods or services provided.
Conclusion
A.
A Comparative Law Overview
Are there any lessons for the comparative lawyer at the end of this
excursion? If one takes an historical approach, it can be seen that, in Canada,
the civil law and the common law have, broadly speaking, adopted similar
approaches to the particular problem examined in this article. Both have
proceeded from a laissez-faire view based on the undesirability of attributing
any legal effects to non-marital unions, to a more indulgent approach which
allows cohabitees to prove that the state of the title does not reflect accurately
their respective interests. The interesting phenomenon for the comparatist is
the tension between the solutions for matrimonial property problems and the
solutions for property disputes between cohabitees.
‘It is uncertain what “with notice” will mean now in the common law since the release of
the constructive trust from the shackles of the fiduciary obligation. Formerly, it was easy
enough to tell whether a third party had or should reasonably have had notice of the breach of a
fiduciary obligation. But now that a constructive trust may be imposed to remedy unjust
enrichment pure and simple, how much knowledge should one impute to a third party? If I buy
property from A whom I know to be cohabiting with B, am I deemed to know that B may have
an interest in the property based upon her past contributions?
‘3″Unless, of course, the impoverished party has previously obtained a judgment and
registered it against the immoveables of the enriched party so as to create a judicial hypothec
(arts 2034 and 2036 C.C.). In such cases, the impoverished party will be able to follow the
property if it is subsequently sold (art. 2056 C.C.).
13 1See Carbonnier, supra, note 86, no. 121.
1983]
LIVING TOGETHER
1005
One notes an extraordinary similarity of approach in both legal systems
to the resolution of matrimonial property problems. 132 Jurists in both systems
struggled to find remedies to redress the inequalities which arose as a result of
matrimonial regimes which treated spouses as strangers in property matters.
At first, the courts were reluctant to intervene in matrimonial property
disputes, and felt the need to rely on the intention of the parties themselves in
order to vary the normal state of affairs. Judges relied on the techniques of
their respective legal traditions in order to give effect to that intention, but the
differences between the resulting trust and tacit partnership 133 should not
obscure the fact that exactly the same process was taking place in both
systems. On either side of the Ottawa River, courts justified their intervention
in the economic affairs of married couples with the same rationale: we are
only doing what the spouses implicitly agreed would be done. As we have
seen, however, this approach involved certain difficulties in both systems,
mainly centred on the fact that the intention of the parties was very much in the
eye of the beholder. A legal doctrine which was so capricious in its applica-
tion and so dependent upon legal fictions deserved to be replaced by a more
reliable guide, as it was when the matrimonial property statutes were
enacted. “I
Where cohabitees are concerned, however, the similarities between the
two systems are not so striking. In the common law jurisdictions, the courts
completed for cohabitees what the legislatures had started for spouses. If the
resulting trust had proved unsatisfactory for the resolution of disputes be-
tween spouses, why should cohabitees be hoist with the same petard? So ran
the reasoning of the Supreme Court of Canada in Pettkus v. Becker. ‘ 35 The
unjust enrichment approach may, at first glance, look as uncertain in applica-
“‘This statement is obviously an oversimplification. In common law Canada, most of the
statutes combine a more-or-less fixed division of “family assets” with a discretion to confer an
interest in “non-family assets” upon the spouse without title if there has been unjust enrichment
on the part of the spouse holding title. Even the division of family assets is based in part upon
the idea of unjust enrichment, however, in that each spouse’s contribution to family life is now
considered worthy of some reward.
The Quebec approach has been to take a global view of unjust enrichment during
marriage, without reference to the concept of family assets (art. 559 C.C.Q.).
’33 The differences between these two institutions had little effect on the practical result in
most cases. They both accomplished the same end: allowing the spouse lacking title to share in
any capital increase in the value of assets subject to the trust or partnership, rather than limiting
recovery to the original value of cash contributions or services rendered.
1 4The dispositions of Quebec’s Bill 89 (An Act to establish a new Civil Code and to reform
family law, S.Q. 1980, c. 39), particularly those dealing with the compensatory allowance,
seem incompatible with the continued viability of the socidtg defait as a tool for resolving
matrimonial property disputes. Express partnerships with a genuine commercial flavour could
presumably still co-exist with the new legislation.
3’Supra, note 2.
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tion as its predecessor, the intention-based approach, but the former has
worked well in practice. 136 It combines the solidity of a clear general principle
with the flexibility necessary to resolve a variety of particular disputes falling
within the purview of that principle. The necessity of referring to established
doctrines of restitution and constructive trust also circumscribes the initial
generality of the unjust enrichment principle. In short, Pettkus v. Becker is a
good example of the formulation of a rule at the right pitch, to borrow Ren6
David’s phrase.’37 It is neither so broad as to provide little guidance in
individual cases, nor so specific as to limit its range of applicability. In
addition, it is accompanied by a cluster of existing sub-rules which will
delineate its boundaries further.
The civil law of Quebec has not, as yet, completed the transition to the
unjust enrichment approach where cohabitees are concerned. The word “tran-
sition” is used with a certain sense of inexorability “3 because, as has been
noted, enacted law in both Qudbec and the common law provinces, and
judge-made law in the latter jurisdictions, have evolved toward an unjust
enrichment approach to proprietary disputes between spouses and cohabitees
respectively. There are, however, a number of doctrinal difficulties which
arise in applying the civilian notion of unjust enrichment to cohabitees, as
discussed earlier.’39 Before indicating how these difficulties could best be
resolved, it will be useful to consider why the civil law has experienced some
trauma in making the transition. Again, a comparative approach will be
instructive.
The common law system has shown a marked preference for real or
proprietary remedies in resolving the types of disputes discussed in this
article. This preference was as much a feature of the intention-based approach
as of the unjust enrichment approach. It would not be an exaggeration to say
that the common law characterized these disputes as “property” problems
rather than as “family law” problems, the law of trusts being simply an
adjunct of property law in this context. The legal responsibilities of husband
136See supra, note 97 and accompanying text.
“See R. David & J. Brierley, Major Legal Systems in the World Today, 2d ed. (1978)
86-93, for a discussion of the “pitch” of legal rules.
“‘Any comparatist familiar with the common law case law prior to the statutory reforms in
the area of matrimonial property law will have a strong sense of ddjii vu in reading the dissent of
L’Heureux-Dub6 J.A. in Sabourin v. Charlebois, supra, note 51. Her plea for the application
of unjust enrichment principles in the spousal context where implicit partnerships cannot be
proved mirrors precisely the dissent of Laskin J. in Murdoch v. Murdoch, supra, note 33. It
will be remembered that it took five years for the heterodox to become acceptable in common
law Canada. How long will it be before the approach of Madame Justice L’Heureux-Dub6
becomes respectable in Qudbec?
‘Supra, Part III(B)(1).
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LIVING TOGETHER
and wife, or of cohabitees, are not discussed in most of the cases,”4′ and the
main issue has usually been whether the contributions of the party lacking title
were sufficient in kind and degree to give rise to a resulting or constructive
trust. Even in the more recent cases, where the courts articulate clearly that
they are using trust concepts to redress imbalances in marital or quasi-marital
relationships, the whole discussion is still couched in proprietary terms. The
shift to an unjust enrichment approach has not changed this underlying
analysis, largely because the concept of unjust enrichment as a head of
obligation has been identified too closely with one of its remedies, the
constructive trust. Virtually all of the cases from common law jurisdictions
which apply Pettkus v. Becker analyze disputes between cohabitees by asking
whether the conditions for the imposition of a constructive trust have been
fulfilled. 4’ In short, the fact of cohabitation is relatively unimportant. The real
issue is said to be whether a particular piece of property is subject to a
constructive trust, and this can be resolved by reference to the principles of
restitution and property law.
What a change when one looks at the civil law system! As Professor
Merryman has noted, it is a great surprise for a common law lawyer to realize
that “there is really no such field as property in the civil law”.’12 What he
means, of course, is not that there is no law of property in the civilian system
but that property law does not have the same fascination nor the same
comprehensiveness ‘1 for the civilian as for the common law jurist. It is
simply not a category in which a civilian tends to think. What a common
lawyer would characterize as a problem of property or trust, the civilian might
analyze under the rubric of successions, family law, tutorship, or obligations.
In other words, property law is more functional in the civilian system; it
serves the needs of other areas of the law rather than remaining an entity unto
itself. In the area of matrimonial property, for example, the accent is much
more on the “matrimonial” than on the “property”. The various community
regimes which have always been a feature of civilian systems are based on the
idea that the nature of the matrimonial relationship should determine the
contours of the spouses’ respective property rights. Thus, many of the basic
concepts of civilian property law were altered markedly in order to serve the
‘1The issue sometimes arose obliquely, in that a wife’s contributions were sometimes
characterized as mere “wifely duties” which did not give rise to any recognizable proprietary
interest. Even here, however, the concept of “wifely duties” was not developed as an
independent notion, as in the civil law, but was simply considered as another form of
contribution which might or might not give rise to a trust.
’41 See, e.g., the cases cited supra, note 97.
‘1See Merryman, Ownership and Estate (Variations on a Theme by Lawson) (1974) 48
Tulane L. Rev. 916, 917.
“3See, on this point, F. Lawson, The Rational Strength of English Law (1951).
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REVUE DE DROIT DE McGILL
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interests of the matrimonial regime. The rule that no one can be compelled to
remain in undivided ownership I” was suspended for community assets,’45 and
the right of ownership itself is subject to a number of restrictions where the
owner is married under a community or partnership of acquests regime. 146 The
common law provinces have moved closer to the idea of a matrimonial regime
with their family law reform legislation, but for the most part, they have
altered existing property rights as little as possible. A spouse without title has
no interest per se in the assets of the spouse holding title until the occurrence
of certain specified events, among which even death is not included in all
provinces.”4′ Thus, in the majority of cases, the matrimonial property law
reforms will have very little impact upon spousal relations. It is doubtless the
shibboleth of property which has dictated the path that reform would take in
the common law world. Rather than rethink the entire realm of matrimonial
property law, the reformers set about in the traditional common law way to
remedy the most pressing defects in the law by providing redress in certain
“crisis” situations, but not otherwise.
Of what relevance is all of this to the law regarding cohabitees? My point
is simply this: The common law has tended to view disputes between spouses
or cohabitees regarding title to assets as “property” problems. In developing
remedies for these situations, the common law relied upon a number of
general principles of the law of property and trusts which could be transposed
easily from marital situations to non-marital situations and which remain
available for any type of relationship that may spring up in the future. The
civil law, on the other hand, prefers to resolve these types of disputes by
looking first to the nature of the parties’ relationship, then deciding what legal
consequences should flow from that relationship. And here is where the
problem arises, because cohabitees simply do not exist in the civilian system.
They have been virtually excluded from the Civil Code 4 and, apart from
‘See art. 689 C.C.
“‘sSee arts 1292 and 1425a C.C. Technically, of course, the spouses are not in a state of
indivision as the community, a separate entity, owns the assets. However, the substance of the
arrangement was co-ownership of the assets which could be prolonged until death or dissolu-
tion of the marriage over the objections of one party.
’46See art. 494 C.C.Q. (partnership of acquests). See also arts 1292 and 1425a C.C.
(community). Although it may be argued that these restrictions are not so much curtailments of
property rights as incapacities imposed upon married women, it must be remembered that many
of the prohibitions applied (and still apply) to husbands as well as wives (e.g., the prohibition
on gifts of acquests).
“7For a survey of the relevant legislation, see A. Bissett-Johnson & W. Holland, eds,
Matrimonial Property Law in Canada (1980); and McClean, Matrimonial Property – Cana-
dian Common Law Style (1981) 31 U.T.L.J. 363.
1’ Article 1657.2 C.C. gives the lessee’s “concubinary” the right to prolong the lease of the
original lessee in certain cases. This is now the sole reference to concubines in the Civil Code.
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LIVING TOGETHER
1009
scattered references in various social welfare laws, they have no legal exist-
ence. When a dispute arises between cohabitees, a court has literally nowhere
to go to find legal rules to resolve it. 49 The court is told that concubinage is
now “licit” since Bill 89, but that does not help in resolving particular
disputes. Although, on occasion, courts have admitted that certain remedies
open to spouses, such as the de facto partnership, might be available to
cohabitees, the admission has been based on pure pragmatism because it is
totally contrary to the civilian way of thinking to apply to cohabitees legal
principles which are normally reserved for spouses. This reluctance is not
necessarily based on any moral objection to non-marital unions per se. It
would arise wherever unmarried parties, whatever the nature of their rela-
tionship, tried to avail themselves of remedies or obligations properly belong-
ing only to spouses.
The history of the treatment of cohabitees by both legal systems has
reflected very well the difference between a rights-based system (the civil
law) and a remedy-based system (the common law). The latter did not have
too much difficulty extending existing remedies to non-marital unions when
social mores had evolved to the point where such solutions were seen as
desirable. A rights-based system, on the other hand, tries to identify the type
of right being dealt with, and then to tailor remedies to fit the situation. This
has proved difficult in Qu6bec because of the legislature’s failure to give any
‘guidance in defining the “rights” of cohabitees. 5 Until the courts are prepared
to fill that gap –
and the Court of Appeal as a body seems totally unwilling to
assume this role ‘ – we can expect reruns of Murdoch v. Murdoch,152
cohabitee style, for years to come.
’49It is interesting to note the frequency with which common law decisions, particularly
Rathwell v. Rathwell, supra, note 31 and Pettkus v. Becker, supra, note 2, are cited by Quebec
courts in disputes between cohabitees. See Richard v. Beaudouin Daigneault, supra, note 64;
Sabourin v. Charlebois, supra, note 51; and Labelle v. Ligar6, supra, note 55. In the writer’s
view, this tendency does not represent a sudden interest in comparative law or a concern for
judicial comity across Canada. Rather, it illustrates well the current lacunae in the law (in the
enacted law at any rate) of Qudbec on two very important topics. A judge who cannot find
guidance within his or her home system, but who does not wish to be seen as a creator of new
law, will invariably go elsewhere for support. In the Quebec context, “elsewhere” usually
means the Anglo-Canadian common law. Those who worry about the “purity” of the civil law
would do well to keep this point in mind.
10For a critique of the current legislative policy (or lack thereof) regarding cohabitees, see
Crrpeau, Les lendemains de la rforme du Code civil (1981) 59 Can. Bar Rev. 625, 630.
” Par6 and L’Heureux-Dub6 JJ.A. seem to represent a minority view within the Court of
Appeal, at least for the moment.
” Supra, note 33.
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B.
Possible Avenues for Reform in Qudbec
The current state of Quebec law relating to property disputes between
cohabitees is highly unsatisfactory. In principle, the courts are supposed to
search for a fictional intent which they are unlikely to find; yet the fact that
they might have found it precludes any recourse to the notion of unjust
enrichment! Such is the result of the doctrine of subsidiarity. There is little
doubt that the unjust enrichment approach is the only justifiable way to solve
these disputes,” 3 but there remains the question how that end should be
achieved. Once again, a comparative perspective may be helpful.
In theory at least, the bulk of law reform in a civilian jurisdiction
equipped with a civil code should be accomplished by the legislature. The
Civil Code Revision Office did, in fact, recommend the official recognition of
the relationship of defacto spouses and the establishment of prescribed legal
consequences which would flow from that relationship. I” Although the
Office’s recommendations did not cover the problems discussed in this
article, they at least would have provided an initial framework for their
resolution, and might subsequently have been amplified. The recommenda-
tions illustrate my earlier point about the framework within which civilians
tend to think about these problems –
they prefer to deduce from the nature of
a particular relationship those remedies which should be available, rather than
importing solutions willy-nilly from other areas of the law.
But how is reform to be accomplished when the legislature expressly
refuses to change the law in a particular area, as was the case with the refusal
of the Assemblde Nationale to effect the reforms suggested by the Civil Code
Revision Office? The obvious answer, that reform must not proceed if the
legislature has forbidden it, is not necessarily the correct answer here because
the legislature expressly wished to validate de facto relationships.’ 5 If the
legislature refused to specify the legal consequences of those relationsips,
then the .courts must do so. This is not heresy, but merely the normal
relationship between court and legislature in a civilian system: the legislature
“‘Even those who argue against legal recognition of cohabitation admit that principles of
unjust enrichment and constructive trust should continue to apply to cohabitees. See, e.g.,
Deech, supra, note 103, 496-7.
‘- See Civil Code Revision Office, Report on the Civil Code (1977), vol. I, book II, arts 49
and 338, and book Im, art. 42. For reactions to these proposals, see Rivet, “Quelques notes sur
la rdforme du droit de la famille” in A. Poupart, ed., Les Enjeux de la Rivision du Code civil
(1979) 285, 296-8.
“I Or at least this is the inference commonly drawn from the abrogation of art. 768 C.C. See
Guy, Les accords entre concubins et entre gpoux apres la Loi 89 [1981] C.P. du N. 157. See
also the remarks of the Minister of Justice, Marc-Andr6 Bddard on the second reading of Bill 89
in [1980] Journal des D~bats, 6th Sess., 31st Legislature, 604.
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LIVING TOGETHER
enunciates broad guidelines and the courts fill the interstices of the legal fabric
with sub-rules consistent with the original guidelines. In fact, the courts of
Qu6bec had already gone a considerable way toward defining the conse-
quences of de facto relationships prior to Bill 89. They had recognized a
support obligation during cohabitation 156 and had decided that a de facto
spouse possessed a sufficient interest in his partner’s well-being to bring an
action under art. 1053 where the partner was injured by the fault of another. 57
These decisions suggest that the courts are prepared to take a relatively
pragmatic approach to the problems arising from de facto relationships,
recognizing that they constitute a social phenomenon which must be dealt
with in a rational, consistent fashion.
There is really nothing to stop the courts of Quebec from applying the
doctrine of unjust enrichment, unfettered by the subsidiarity rule, in resolving
property disputes between cohabitees. Such an approach would be consistent
with the previous evolution of the law in Quebec, and would give effect to the
reasonable expectations of those considering cohabitation as an alternative to
marriage. The fact that two parties may wish to avoid the legal consequences.
of marriage does not mean that they intend to exploit each other economical-
ly, and even if they did, there is no reason for the law to countenance such
behaviour between cohabitees when it will not permit it between strangers. It
is indeed ironic that the civil law, which has long recognized the existence of a
generalized doctrine of unjust enrichment, should be so hesitant to apply it
between cohabitees when the common law, which traditionally recognized
only particular instances where unjust enrichment might be remedied, has
recently proclaimed the merits of the doctrine as a means of resolving
property disputes between cohabitees. It should be admitted frankly that the
subsidiarity doctrine is simply a control device aimed at circumscribing the
amorphous nature of unjust enrichment, in the same way that the pre-existing
fiduciary relationship was traditionally a control device in the common law,
restricting the availability of the constructive trust. As the common law world
has begun to cast off the fetters of the fiduciary relationship, so should the
civilians consider more critically the value and purpose of the subsidiarity
rule. 158
This article has dealt mainly with one specific problem which often faces
cohabitees upon the termination of their relationship. It will be objected that
this problem arises only in the context of those relationships (surely a small
fraction of the total) where the parties have amassed sufficient property to
make litigation worthwhile, and that conclusions reached here are not neces-
ImSupra, note 68.
“‘See Therrien v. Gunville [1976] C.S. 777.
‘As did Beetz J. in Cie Immobilire Viger Ltie v. Lauriat Giguere Inc., supra, note 116.
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sarily a guide to the resolution of larger issues relating to cohabitation. Those
who oppose the legal recognition of cohabitation would argue that one could
deal with the problems raised in this article by reference to existing principles
of property law and unjust enrichment without otherwise legitimizing the
relationship of cohabitees, 15 9 that is, without imposing an obligation of sup-
port, creating succession rights or allowing claims under fatal accidents
legislation, worker’s compensation statutes or similar enactments.
I would challenge this argument on two grounds. First, it is doubtful
whether one can resolve property disputes between cohabitees without, at
some point, touching the issue of the support obligation. If one treats cohab-
itees as strangers with regard to all financial matters, then one is hard pressed
to explain the inevitable commingling of funds and property which character-
izes the relationship of many cohabitees. If no support obligation exists, can
the entire record of domestic accounts be reopened when the relationship
terminates? Such a difficulty is sure to arise if one denies the existence of a
support obligation between cohabitees. In fact, the courts have implicitly (in
common law Canada) 6 and explicitly (in Qu6bec) 16 recognized such an
obligation, which demands that the partners contribute to the couple’s wel-
fare, in accordance with their respective means, while cohabitation lasts. This
judicial recognition represents an effort to separate the couple’s domestic
finances from their extra-domestic affairs. Within the former sphere, sums
paid to the “common pool” will not normally be recoverable, while in the
latter sphere, contributions may give rise to the application of unjust enrich-
ment principles depending upon the circumstances although, as noted above,
unjust enrichment is more difficult to assert between cohabitees in Qu6bec.
Presumably, opponents of the legal recognition of cohabitation are not so
concerned with this aspect of the support obligation as with the possible
continuation of the support obligation after termination of the relationship. 62
This issue is admittedly crucial and it gives rise to my second argument in
favour of broad legal recognition of cohabitation.
One opponent of the continuation of a support obligation after separation
characterizes such payments as a deferred pension for sexual services, espe-
cially where the relationship has produced no children. In her view, such an
obligation merely perpetuates the stereotyped view of women as dependent. 63
This may be so, but it does not seem to be much of a solution to tell a woman
“9See Deech, supra, note 103, 496-7.
“rSee, e.g., Niederberger v. Memnook, supra, note 11.
161 See supra, note 68 and accompanying text.
‘ See, e.g., Deech, supra, note 103.
16 Ibid.
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LIVING TOGETHER
1013
with few marketable skills ‘, to become independent, especially at a time of
increasing unemployment and deepening recession. Denial of a continued
support obligation means, quite simply, that many women are thrown directly
onto the tender mercies of the welfare authorities. Is dependence on the State
less irksome than dependence on a man? Admittedly, the mere existence of a
continued support obligation would not guarantee its enforceability, and
many women would, in any case, become dependent on state aid where their
erstwhile partners were sufficiently elusive or insufficiently solvent. But such
problems have not caused us to abandon the support system elsewhere. The
existence of a guaranteed annual income for all would alleviate some of these
problems, but until such a solution is adopted, the hard fact is that many
women are in an economically underprivileged situation. The fact that the law
must deal with this aspect of contemporary social reality does not prevent
legislatures from encouraging change in other areas, for instance, by promot-
ing equal pay for work of equal value, or increased educational opportunities
for women.
Moreover, is it true to say that a continued support obligation is merely a
pension for sexual services? In creating such an obligation, is the State not
merely recognizing the element of reliance which characterizes the rela-
tionship of many cohabitees? This element of reliance may not exist at the
outset, but it will almost certainly evolve if the relationship endures. This
reliance gives rise to reasonable expectations which the law should protect.
Of course, there is a circular argument here: Does the law confirm existing
expectations or create them? Without conducting an opinion poll, it would be
difficult to say. But one thing is certain: The law has become increasingly
solicitous about protecting those who have (reasonably) relied to their detri-
ment on the words or actions of others.”‘ With the attenuation of the doctrine
of freedom to contract, has come a concomitant increase in the number of
non-promissory obligations to which individuals are subject. To argue, then,
that cohabitees, having freely chosen their way of life, should freely choose
the obligations that go with it, is to wax nostalgic for an era when, as Dr Grant
Gilmore put it, “ideally, no one should be liable to anyone for anything”.166
It is no doubt true that cohabitees may have different expectations from
married couples, and that different forms of mutual reliance may arise. But
that argument should not lead us to conclude that cohabitees ought to be
exempt from regulation altogether; it merely suggests that regulation must be
“‘It is presumed that women possessing marketable skills would not need the benefit of an
extended support obligation.
“‘See P. Atiyah, The Rise and Fall of Freedom of Contract (1979) 771-8.
16G. Gilmore, The Death of Contract (1974) 16.
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McGILL LAW JOURNAL
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tailored to meet their special needs and desires, with the realization that the
marital model will not necessarily be apt for all people.
In the final analysis, the laissez-faire view, whether employed to resolve
property disputes between cohabitees or to address other aspects of their
relationship, is simply too facile to be effective. It solves problems by
pretending they do not exist. Nor is it sufficient to say that the droit commun is
adequate to solve all disputes between cohabitees. Although it was argued
earlier that judge-made law has an important role to play in filling gaps in the
legislative pattern, there comes a point where legislation should synthesize
the jurisprudential experience and refashion it in the form of clear, abstract
norms. This suggestion is particularly apt with regard to the support obliga-
tion, which is inevitably intertwined with most disputes arising out of cohab-
itation. Although, in Qu6bec, the courts have stumbled along, on occasion,
with a judicially-created support obligation, legislative norms would clearly
be preferable. Again, such legislation need not mimic the marital model, nor
the solutions adopted by the common law. It might provide for a continued
support obligation only in exceptional circumstances, or only where children
are involved. But this central policy issue in the field of cohabitation must be
addressed in some fashion. The recent failure to act by the Qu6bec legislature
only increases the risk that common law solutions will be imported unthink-
ingly (as is already beginning), with the attendant risk of rendering a “mixed
jurisdiction” merely a “mixed-up jurisdiction”.
