1. Introduction

The recent case, Douglas v Francis,[1] is a welcome reminder of the law governing unjust enrichment between partners in a common law relationship.

2. Facts

The case concerns a dispute between two common law partners, the Applicant, Vern Douglas, and the Respondent, Marlene Francis (the ‘parties’). They lived in a home owned by Ms Francis during their lengthy common law relationship. Ms Francis’s sister, Ms Brissett and her husband originally agreed to purchase the home and paid a deposit of $8,000. However, because of financial and marital difficulties, Ms Brissett asked her sister to go on title with her to permit the deal to close, which she did. The $8,000 deposit was repaid  to Ms Brissett’s husband but there was a dispute about who paid it. Mr Douglas and Ms Francis each claimed to have done so.

The deal closed in 2004 with Ms Francis and Ms Brissett taking title. Ms Brissett did not move into the home but Ms Francis and her two daughters from a previous relationship did. Moreover, the mortgage on the home was solely in Ms Francis’ name as were the property tax statements, and it was Ms Francis who was responsible for paying all outgoings for the home, including the mortgage, property insurance, home insurance, property taxes, and utilities. In 2017 Ms Brissette transferred title into the sole name of Ms Francis.

The parties had been dating since the early 1990s. It was unclear when they separated but Mr Douglas moved out of the home in June 2018. They parties had not entered into a written agreement detailing their financial arrangements during their cohabitation.

3. Analysis and Judgment

3.1 The Law

Justice Wilkinson began her analysis by reviewing the law of unjust enrichment with particular reference to the well-known case, Kerr v Baranow.[2] The case law establishes that the party who claims that another party has been unjustly enriched, must establish the following three elements: (1) an enrichment; (2) a corresponding deprivation; and (3) the absence of a juristic reason for the enrichment. For the sake of clarity I shall refer to the parties by their names in discussing whether these elements were satisfied. Her Honour noted that for the first two elements, Mr Douglas must show that he gave something to Ms Francis which she retained and which enriched her, and which is capable of being restored to Mr Douglas, either in specie or by a money payment.

She went on to note that for the third element there is a two-step process to determine whether there is no juristic reason for Ms Francis to retain the benefit she received. The first step considers the established categories of juristic reasons to deny recovery, such as a contract, the intention to make a gift, or statutory obligations. If there is no juristic reason from an established category, Mr Douglas has shown a prima facie case of unjust enrichment.

However, the prima facie case is rebuttable if Ms Francis can show that there is another reason to deny recovery. Thus, the burden of proof shifts to her to demonstrate why she is entitled to retain the enrichment. In determining whether there is a reason to deny recovery, the court considers all aspects of the transaction, including the reasonable expectations of the parties and any public policy considerations.

If Mr Douglas establishes unjust enrichment, he may be entitled to either a monetary or a proprietary award. The preference is for a monetary award (para 67). However the court may make a proprietary award in the form of a constructive trust that is proportionate to the unjust enrichment if Mr Douglas can show a causal connection between his contributions and the acquisition, preservation, maintenance, or improvement of the property.

Finally, if the joint efforts of the parties are part of the accumulation of wealth, there will be an unjust enrichment if one party is left with a disproportionate share of the jointly gathered asset. In that case the unjust enrichment is referred to as a ‘joint family venture’.

3.2 Contribution Toward the Purchase of the Home

Justice Wilkinson concluded that Mr Douglas failed to establish that Ms Francis was unjustly enriched by his alleged financial contribution to the acquisition of the home. She found Ms Francis’s evidence to be more credible, that Ms Francis paid the $8,000 to Ms Brissett’s husband, and that Ms Francis paid the closing costs for the purchase.

3.3 Contribution to the Mortgage

Mr Douglas made payments to Ms Francis on a bi-weekly basis during the time they lived together, they varied in amount and were sometimes interrupted. However, her Honour held that Mr Douglas failed to establish that these payments were intended exclusively for the mortgage. Rather, they would have been intended to contribute also to other expenses for running a household. She accepted Ms Francis’s evidence that she paid approximately $30,000 a year for those expenses. During the time the parties cohabited, Mr Douglas had full use of the house and failed to establish that he suffered a corresponding deprivation because of the regular payments he made to Ms Francis.

3.4 Contributions to Household Expenses

Justice Wilkinson found that Mr Douglas paid intermittent moneys for grocery and other expenses and that the parties also shared automobile insurance costs. However, she found that Ms Francis paid the larger share of these costs.

3.5 Repairs and Renovations to the Home

Her Honour found that Mr Douglas made contributions to the home which increased the value of the home. Consequently, to that extent he established that his labour enriched Ms Francis.

3.6 Remedy Owed to Mr Douglas

Mr Douglas did not provide specific evidence of the work he performed on the home. However, her Honour took into account that the invoices provided by Ms Francis that she had paid for materials to complete various renovations tasks, such as installation of hardwood floors, installing tile, cleanup, and painting amounted to approximately $18,000. She found, ‘the type of work described in these invoices is analogous to the efforts Mr Douglas made to better the property’ (para 70). Consequently, she awarded him $18,000 as compensation for the labour he provided to improve the home.

3.7 Joint Family Venture?

Her Honour found that the parties never filed joint tax returns and did not commingle their funds. She held therefore that Mr Douglas failed to establish that the parties intended to blend their assets and wealth or that they were engaged in a joint family venture.

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[1]    2025 ONSC 2584.

[2]    2011 SCC 10.