After Kerr v. Baranow: Why Partners’ Property Claims Turn on Unjust Enrichment

Property claims between unmarried Ontario couples are decided on unjust enrichment and, where the relationship functioned as a shared venture, a joint family venture analysis. You may still come across an older, narrower doctrine: the common intention resulting trust. It worked on a different theory than unjust enrichment, and understanding the distinction explains why courts no longer use it for couples.

This article explains why, after Kerr v. Baranow, partners’ property claims are decided on unjust enrichment rather than a common intention resulting trust, what the old claim was, and how it differs from the claims courts do use.

What a Common Intention Resulting Trust Is

A resulting trust, in general, arises when the law presumes that a person holds property for the benefit of someone else, based on the circumstances of how it was acquired. A common intention resulting trust was a specific version of this idea applied to domestic relationships: it asked whether the partners actually intended — expressly or through their conduct — that beneficial ownership of a particular property would be shared, even if legal title said otherwise.

The key word was intention. This claim was not primarily about whether one partner was enriched at the other’s expense — that’s the unjust enrichment framework. It asked whether the evidence showed the couple meant to share ownership of a specific asset, regardless of whose name ended up on the deed. In Kerr v. Baranow, 2011 SCC 10, the Supreme Court of Canada held that this claim has no continuing role in property disputes between domestic partners, so these disputes are now decided through unjust enrichment.

How It Differs From Unjust Enrichment and Joint Family Venture Claims

A lawyer may plead more than one theory, but since Kerr v. Baranow the common intention claim has no continuing role, so partners’ property disputes are decided on unjust enrichment. The claims ask different questions and rely on different kinds of evidence.

What Evidence Showed a “Common Intention”

Because the old claim turned on intention rather than contribution alone, the evidence it looked to was different from a straightforward unjust enrichment claim:

• Direct statements between the partners about who would own the property, or how it would be treated
• Conduct consistent with joint ownership — both partners paying the mortgage, both named on insurance or as responsible for major repairs, both treating the asset as “ours” in dealings with others
• Financial contributions specifically toward the purchase, rather than toward general household expenses
• The absence of any competing explanation, such as a documented gift or loan

A court had to infer intention from the evidence as a whole. Because that claim no longer applies between partners, how evidence like this counts in your situation depends on your facts; speak to a lawyer.

Why Unjust Enrichment Decides These Claims Now

Unjust enrichment is the framework for unmarried partners in Ontario, and it is more flexible — it doesn’t require proving the parties turned their minds to ownership of a specific asset, only that one partner was enriched unfairly at the other’s expense. In Kerr v. Baranow, 2011 SCC 10, the Supreme Court of Canada held that the common intention resulting trust has no continuing role in property disputes between domestic partners, so these disputes are now decided through unjust enrichment.

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