Mar 20, 2014

Family Law; Division of Assets; Constructive Trusts

Ibbotson v. Fung, 2013 BCCA 171 (CanLII)
~Joint family ventures limited to situations where no clear link established between party's contribution and specific family assets~
Discussion: Joint family ventures are a relatively new approach in the division of assets in family law cases dealing with unjust enrichment. Developed by the Supreme Court of Canada in Kerr v. Baranow, 2011 SCC 10 ('Kerr'), this concept replaced the previous use of 'common intention resulting trusts' to achieve an equitable apportionment of jointly earned assets, based on the final value of the asset rather than on the value of a party's contributions. In this case, the Court of Appeal limited the application of this approach to situations where a constructive trust was not appropriate because there was no clear link to any specific asset.
The plaintiff in this case brought the concept of a joint family venture to bear on the division of a single asset: the family home. This was based on Kerr's characterisation of joint family ventures as assets which were produced through mutual effort, economic integration, actual intent, and priority of the family (Kerr at paragraph 100). The plaintiff argued that these were all present in the family's dealings with their residence, and that therefore she was entitled to a percentage of its present value, rather than reimbursement of her contributions.
Although the Court of Appeal supported the result, it did not support the broad application of joint family ventures, seeing them as limited to divisions of general assets and other situations 'where the contributions of the parties may not be attributable readily to specific assets or where it may be inappropriate to attempt such an attribution' (at paragraph 89).
The Court held that Kerr had not changed the law of remedial constructive trusts as set out in Pettkus v. Becker, [1980] S.C.R. 834. Constructive trusts could be awarded where monetary remedies were insufficient and the claimant could demonstrate 'a link or causal connection between his or her contributions and the acquisition, preservation, maintenance or improvement of the disputed property' (Kerr at paragraph 50).
In fact, the result of the two approaches was practically the same, with the exception that a constructive trust applied to a particular asset and granted property rights. Where a disagreement over apportionment was centred on one asset, the established principles of constructive trust applied and the Court held there was no need to resort to a joint family venture (at paragraph 106).
In a lengthy dissent, Madam Justice Garson held that although both approaches remained open, 'taking a unified approach to this area of the law would be a beneficial development rather than continuing to characterize some remedial orders as being a constructive trust and others a joint family venture' (at paragraph 29). In her view, nothing in Kerr limited joint family ventures to general assets of the estate, and such a limitation ignored the reality of family arrangements which could involve very specific financial integration.