- 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.
- Because this claim turns on intention rather than contribution alone, useful evidence tends to look different from a straightforward unjust enrichment claim: - Direct statements between…
Most discussions of property claims between unmarried Ontario couples focus on unjust enrichment and, where the relationship functioned as a shared venture, a joint family venture analysis. There's an older, narrower doctrine that sometimes still comes up: the common intention resulting trust. It works on a different theory than unjust enrichment, and understanding the distinction matters if this claim is raised in your case.
This article explains what a common intention resulting trust is, how it differs from the more commonly used claims, and why it's used less often today.
A Trust Claim Based on Intention, Not Just Contribution
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 is a specific version of this idea applied to domestic relationships: it asks whether the partners actually intended — expressly or through their conduct — that beneficial ownership of a particular property would be shared, even if legal title says otherwise.
The key word is intention. This claim isn't primarily about whether one partner was enriched at the other's expense — that's the unjust enrichment framework. It's about whether the evidence shows the couple meant to share ownership of a specific asset, regardless of whose name ended up on the deed.
How It Differs From Unjust Enrichment and Joint Family Venture Claims
| Claim | Core question | Focus |
|---|---|---|
| Common intention resulting trust | Did the parties intend to share ownership of this specific property? | Intention regarding one asset |
| Unjust enrichment | Was one partner enriched, did the other suffer a loss, and is there no legal reason for it? | Fairness between the parties generally |
| Joint family venture | Did the relationship function as a shared enterprise, entitling a share of accumulated wealth? | The relationship as a whole, not one asset |
These claims aren't mutually exclusive, and a lawyer may plead more than one in the same case, but they ask different questions and rely on different kinds of evidence.
What Evidence Can Show a "Common Intention"
Because this claim turns on intention rather than contribution alone, useful evidence tends to look 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 has to infer intention from the evidence as a whole; there's rarely a single document that settles the question outright, unless the partners actually wrote something down at the time.
Why This Claim Is Used Less Often Today
Unjust enrichment has become the more commonly used framework for unmarried partners in Ontario because it's 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. A common intention resulting trust remains legally available, but many lawyers plead it alongside, rather than instead of, an unjust enrichment claim, and rely on it more heavily only where the facts about intention are unusually clear.
Frequently asked questions
Do I need a written agreement to prove common intention?
No, though it helps enormously. Courts can infer common intention from consistent conduct over time, but a clear written record removes the guesswork and is far easier to prove than reconstructing intention after a relationship has ended.
Is this the same as being on the title of a property?
No. Legal title is about whose name is registered on the deed. A common intention resulting trust is about beneficial ownership — who is entitled to the value of the property — which can differ from legal title if the evidence supports it.
Can I bring this claim and an unjust enrichment claim at the same time?
Yes, in principle. Lawyers sometimes plead multiple legal theories addressing the same property dispute, and a court can consider which one, if any, the facts actually support.
Why haven't I heard of this claim before?
It's older and narrower than unjust enrichment, and Ontario courts today rely on unjust enrichment — including the joint family venture approach — far more often for unmarried couples. It still exists as a legal option, but it comes up less frequently in practice.
This is a family law question
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