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Peters v Swayze, 2018 ONCA 189


Peters appeals the dismissal of her claim for a constructive trust interest in a home that was owned by her former common law partner, Swayze.

Peters and Swayze cohabited for 15 years. When they began their common law relationship, Swayze took title to a home that he had previously owned with a former spouse. Two years into their relationship, Peters and Swayze moved into this home (that which Swayze acquired from her former spouse).

In 2016, this home was worth between $260,000 and $320,000. The home had a mortgage owing in the amount of approximately $157,000.

Peters’ claim for a constructive trust was rooted in her assertion that she made several contributions to the home and relationship. For example, she noted that she paid half the monthly mortgage costs, paid the phone, internet and cable bills, purchased food for the family, worked in the garden, and cleaned the home. Peters’ position was Swayze had been unjustly enriched by her contributions, thereby entitling her to half the increase in the equity of the home as a joint family venture.


The Ontario Court of Appeal noted that the relevant law with respect to unjust enrichment claims arising from common law relationships comes from the Supreme Court of Canada’s decision in Kerr v Baranow, 2011 SCC 10. In Kerr, the SCC noted that courts should (i) determine if there has been an unjust enrichment, by determining whether the defendant has been enriched and the claimant has suffered a corresponding deprivation; if so then (ii) there must be no reason in law or justice for the defendant to keep the benefits conferred by the claimant.

In cases where unjust enrichment has been established, courts must then determine whether a joint family venture exists. In doing so, courts ought to consider the following Kerr factors:

  • Mutual effort: did the parties pool their efforts and work towards a common goal?
  • Economic integration: how extensively were the parties’ finances integrated?
  • Actual intent: did the parties intend to have their lives economically intertwined?
  • Priority of the family: to what extent did the parties give priority to the family in their decision making?

The Court of Appeal specifically noted that the determination of whether there has been unjust enrichment and a joint family venture is a question of fact, and as such, Peters bears the onus of establishing same.

The Court of Appeal agreed with the trial judge’s finding that unjust enrichment had not been established, on the basis that Peters did not pay for capital repairs, insurance or property taxes. The Court of Appeal further agreed with the trial judge’s finding that the wealth of the parties was not created from the fruits of the domestic and/or financial relationship. As such, the Court of Appeal concluded that there was no error of fact or law made by the trial judge, and dismissed Peters’ appeal.