Domestic Contribution and Constructive
Trusts: The Canadian Perspective

Mary Welstead*

Early in November 1986, Rosa Becker, the respondent in Pettkus v. Becker, 1
committed suicide after a twelve year legal battle.2 After six years oflitigation the
Supreme Court of Canada, in 1980, had awarded her $150,000 under a
constructive trust. She never received payment because the appellant Lothar
Pettkus claimed that he did not accept the Supreme Court's ruling. He proceeded
to "use every legal tree in the forest of law,,3 to evade Rosa Becker's attempts to
enforce her constructive trust. On November 5th 1986 she finally gave up her
fight.

This article commemorates Rosa Becker. She may only have won a pyhrric
victory for herself but she succeeded in changing the law of trusts of property, in
the familial context, in Canada. In so doing, she prepared the way for the
recognition of domestic contribution as giving rise to a remedial constructive trust.
No other commonwealth jurisdiction has accepted domestic contribution a/one as
grounding a successful plea of a constructive trust.4

The acceptance by the Canadian courts of the relevance of domestic
contribution in trusts of property in the familial contextS has developed over a
period of some thirteen years.6 The origins of this development are to be found in
the dissenting judgement of Laskin J. in Murdoch v. Murdoch.7 Laskin J.'s views
were approved of by Dickson J. in diaa, in Rathwell v. Rathwell.8 It was not,
however, until Pettkus v. Becker9 that the Canadian Supreme Court was able to

•
1.
2.
3.
4.

5.

6.
7.
8.
9.

Of the School of Law, University of Buckingham.
Pettkus v. Becker 117 D.L.R. (3d) 257.
The Montreal Gazette, 11th November 1986, p.1 col.I.
Ibid. per Gerald Langlois, Rosa Becker's lawyer.
See Bums v. Bums [1984]1 All E.R. 244. Domestic contribution might be accepted as a relevant
detriment if an express oral agreement exists and in that sense may give rise to a constructive
trust: see Grant v. Edwards [1986] 2 All E.R. 426, at p.437 per Sir Nicholas Browne-Wilkinson
V.C.. See also n.18, infra.
The term familial is used to include all relationships involving emotional, financial and practical
interdependancy; see [1979] 31 Fam. Law 244; [1980] G.L.J. 31.
John L. Dewar, [1982] 60 Can. Bar Rev. 265.
Murdoch v. Murdoch 41 D.L.R. (3d) 367, at p.377.
Rathwe// v. Rathwe// 83 D.L.R. (3d) 289, at p.305.
Supra n.1.

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escape from the confines of the intention based resulting trust and hold that the
concept of the constructive trust based on the principle of unjust enrichment was
accepted law in Canada. Five years later, the Supreme Court in Sorochan v.
Sorochan1o held that the principle of unjust enrichment extended to domestic
contributions.

The intention based resulting trust
Prior to the decision of the Supreme Court in Pettkus v. Becker] 1 the Canadian
courts had adopted an artificially extended form of the purchase money resulting
trust in the resolution of familial property disputes. In a strict sense this category of
resulting trust does not require intention at all; it arises by operation oflaw.12 The
principle upon which the purchase money resulting trust is based was stated in
Dyer v. Dyerl3 by Eyre C. B .. He accepted that, "the clear result of all the cases,
without a single exception, is that the trust of a legal estate, whether freehold,
copyhold, or leasehold; whether taken in the names of the purchasers and others
jointly, or in the names of others without that of the purchaser; whether jointly or
successive, results to the man who advances the purchase money.,,14 This
resulting trust arises out of Equity's presumption that bargains rather than gifts are
intended in such circumstances. The person advancing the purchase money is
presumed to have intended that the legal title holder should hold the beneficial
title on trust for him. The presumption is rebuttable by evidence of a contrary
intention.

The purchase money resulting trust was extended to post acquisition payments
provided that the payments were referable to the property. In Gissing v. Gissing, ]5
Lord Diplock recognised that it would be unreasonably legalistic to restrict the
purchase money resulting trust to contributions made at the time of the acquisition
of the property. He accepted that later financial contributions referable to the
property could also lead to a resulting trust. A retrospective inference could be
made from these financial contributions that the parties had intended to share the
beneficial interest from the time of acquisition. 16

Professor Donovan Waters has observed that this retrospective inference was, in
fact, " ... a constructive trust approach masquerading as a resulting trust
approach.,,17 He stressed the absence of a common intention, in the majority of
cases, at the time the property was acquired. Professor Waters argued that the
courts' discovery of an implied common intention from financial contributions was
frequently a means of giving the wife a just and equitable share in the disputed
asset.

10. Sorochall v. Sorochall 29 D.L.R. (4th) 1, at p.6.
11. Supra n.1.
12. Donovan Waters, (1970) 16McGi/l L.Joum. 188; Donovan Waters, (1975) 53 Call. Bar Rev. 366.
13. Dyer v. Dyer (1788) 2 Cox Eq. Cas. 92, at p.93.
14. Ibid.
15. Gissillg V. Gissillg [1971] A.C. 886.
16. Ibid., at p.908
17. (1975) 53 Call. Bar Rev. 366, at p.368.

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Inevitably attempts were made to extend the resulting trust still further and
include within its boundaries fact-situations in which a labour contribution or a
contribution to general household expenditure had been made. The courts
showed a marked reluctance to accept that these contributions could lead to an
inference of a resulting trust. 18 If there was a separate agreement by the parties to
share the beneficial interest in property the courts were prepared to accept that
this type of contribution could give rise to a resulting trust. Lord Diplock in Gissing
v. Gissini9 accepted that in circumstances of express oral agreements, "it has been
assumed sub silentio that they provide for the spouse in whom the legal estate in the
matrimonial home is not vested to do something to facilitate its acquisition, by
contributing to the purchase price or to the deposit or the mortgage instalments
when it is purchased upon mortgage or to make some other material sacrifice by
way of contribution to or economy in the general family expenditure.,,2o

The Canadian Courts claimed to follow the approach of Lord Diplock towards
resulting trusts as formulated in Gissing v. Gissing.21 An examination of the case
law prior to Pettkus v. Becke?2 suggests that this was not so. Substantial labour
contributions were accepted as giving rise to an inference of intention where there
was no separate express agreement to share the beneficial interest.

The majority decision in Murdoch v. Murdoch.
It fell to the Supreme Court in Murdoch v. Murdoch23 to decide whether to extend
the intention based resulting trust to contributions of non-domestic labour in the
absence of a separate express agreement to share the beneficial interest in the
property. The appellant wife, Mrs Murdoch, had lived and worked with the
respondent, Mr Murdoch, for twenty-one years. During the greater part of that
time they lived on ranches which were purchased in the sole name of Mr
Murdoch. There was no express common intention on their part to share the
beneficial interest. Nor was there any substantial financial contribution at the time
the disputed property was purchased from which such an intention could be
inferred. The Supreme Court was prevented from accepting Mrs Murdoch's
financial contribution as leading to an inference of a common intention because
the trial judge had held that her contribution was a loan.24 Mrs Murdoch claimed
that her substantial contribution of labour led to the inference that a common

18. See Gissing v. Gissing [1971] A.C. 886; Pet/ill v. Pettitt [1970] A.C. 777; Burns v. Burns [1984] 1
All E.R. 244; cf Nixon v. Nixon [1969] 1 W.L.R. 1676.

19. Supra n.1S.
20. Ibid., at p.90S; see also McFarlane v.McFarlane [1972] N.!. 59. It has been suggested that this type

of trust is not a resulting trust but a failed express trust given effect by means of estoppel: see C.
Harpum, (1982) 2 OxfordJo. Leg. Stud. 277, at p.279, Sir Nicholas Browne-Wilkinson V.c., in
Grant v. Edwards [1986] 2 All E.R. 426, at p.437, referred to such a trust as a constructive trust

21. Supra n.1S.
22. Supra n.1.
23. Murdoch v. Murdoch 41 D.L.R. (3d) 367. See also Jacobsen, (1974) 20 McGill L. Journ. 308.
24. Murdoch v. Murdoch 41 D.L.R. (3d) 367, at p.380.

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intention existed between her and her husband that they should share the
beneficial interest of the property. She relied on the judgment of the Alberta Court
of Appeal in Trueman v. Trueman.25 In that case it was accepted that substantial
labour by a wife, which would have normally been done by hired hands or her
husband, could give rise to a resulting trust of the family homestead.

Mrs Murdoch's labour contribution would have appeared, to most people, to be
substantial. She described her work as "Haying, raking, swathing, mowing, driving
trucks, and tractors and teams, quietening horses, taking cattle back and forth to
the reserve, deworming, vaccinating, branding, anything that was to be done. I
worked outside with him, just as a man would ... ,,26 Mr Murdoch had claimed
that such labour was, "just about what the ordinary rancher's wife does".27 This
view was shared by the majority of the Supreme Court. In the absence of a finding
of a substantial labour contribution Mrs Murdoch's claim failed.

By accepting that Mrs Murdoch's labour was that of an ordinary rancher's wife,
the Supreme court was able to distinguish the Trueman Case. The claim in
Trueman was for a share in the family homestead. The labour of the wife in that
case was accepted as substantial and could therefore give rise to an inference of an
intention to share in the beneficial interest of that homestead. In Murdoch the
interest claimed was a one-half share in all the property of a more substantial
commercial enterprise. There was a marked reluctance by the Supreme Court to
extend the resulting trust concept to commercial assets even where the family
home was part of those assets.

Counsel for the respondent in Murdoch had contended that in the light of the
Supreme Court decision in Thompson v. Thompson28 the Trueman Case was wrongly
decided. Mardand J., giving the majority decision in Murdoch, impliedly accepted
that Judson J. in Thompson had left open the possibility that a substantial labour
contribution could give rise to a resulting trust. Judson J. had held that, in the
absence of a financial contribution or other attributes of matrimonial partnership,
there could be no resulting trust. It was thus open to the Canadian Supreme Court
at some future date to infer an intention to share the beneficial interest in property
from other attributes of matrimonial partnership such as a substantial contribution
of labour.

The dissenting judgment of Laskin J. in Murdoch v. Murdoch
Laskin J. in Murdoch v. Murdoch29 did not share the trial judge's appreciation of
normalcy. He thought that Mrs Murdoch's labour could be characterised as
nothing less than extraordinary. As such, it should be treated as no less significant
than substantial financial contributions. However, to do that within the framework

25. Trueman v. Trueman 18 D.L.R. (3d) 109. See also Smith v. Ahone 56 D.L.R. (3d) 454.
26. Murdoch v. Murdoch 41 D.L.R. (3d), at p.380.
27. Ibid.
28. Thompson v. Thompson 26 D.L.R. (2d) 1.
29. Murdoch v. Murdoch 41 D.L.R. (3d) 367, at p.377. See also Re Spears v. Levy 52 D.L.R. (3d) 146.

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of resulting trusts was, according to Laskin ]., quite artificial. He found it
unnecessary to manipulate the resulting trust doctrine any further. He argued
forcefully that the doctrine of constructive trusts based on unjust enrichment was
to be preferred. This doctrine had neither been pleaded nor argued by the parties.
The majority in Murdoch did not respond to Laskin ].'s views.

His dissenting judgment was grounded on the Supreme Court decision in
Deglman v. Guaranty Trust Co. of Canada and Constantineau30 which recognised the
principle of unjust enrichment, for the first time, as good law in Canada, in the
context of quasi-contractual restitutionary claims. Laskin]. held that Mr Murdoch
had been unjustly enriched by Mrs Murdoch's substantial contribution of
non-domestic labour. A constructive trust arose in these circumstances. Laskin J.
was not prepared to extend this principle to purely domestic labour. Such labour
might be said to be, "merely a reflection of the marriage bond,,3! and could not be
translated easily into money's worth as could other types of labour. He was not
prepared to view domestic activity as equal to strenuous physical labour. Laskin
].'s judgment served the purpose of averting attention to the mythical nature of the
intention based resulting trust in circumstances where the claimant's contribution
took the form of substantial labour.

The majority decision in Rathwell v. Rathwell
A differently constituted Supreme Court in Rathwell v. Rathwelp2 considered,
once again, the applicability of resulting trust principles in the familial context.
Until the breakdown of their marriage Mr and Mrs Rathwell had worked together
in a joint farming enterprise. When their relationship came to an end, Mrs
Rathwell claimed a half-share in the property, the title of which was in the sole
name of Mr Rathwell.

There was the fortuitous distinction between Murdoch v. Murdoch33 and the
Rathwell Case that Mrs Rathwell had made a limited financial contribution to the
property. This contribution was made from the Rathwell's joint account into which
they had placed their wartime savings.

In those circumstances the court was prepared to extend resulting trust
principles to a fact-situation where the major contribution of the wife was
substantial farm labour and domestic labour, albeit in a farm context. It recognised
that Mrs Rathwell, "in addition to what might be called ordinary household tasks,
took meals to the fields, helped move machinery, raised poultry, acted as back up
driver for the bus contract, milked cows, grew a garden and did chores ... In the
grain belt the kitchen was considered to be just as much an integral part of the
operation as was the feed lot or the machine shed.,,34 The financial contributions

30. Deglman v. Guaranty Trust Co. of Canada and C01lStantineau 3 D.L.R. 785.
31. Murdoch v. Murdoch 41 D.L.R. (3d) 367, at p.389.
32. Rathwell v. Rathwell 83 D.L.R. (3d) 289.
33. Supra n.1.
34. Rathwell v. Rathwell 83 D.L.R. (3d) 289 at p.292.

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alone would not have been sufficient evidence of an intention to share the
beneficial interest. When both financial and labour contributions were taken
together, the Supreme Court was prepared to infer that an intention to share the
beneficial interest in the property had existed from the moment the Rathwell
family enterprise began.

The judgment of Dickson J. in Rathwell v. Rathwell
Dickson]. concurred in the judgment in Rathwell v. Rathwe1l35 based on resulting
trust principles. However he seized the opportunity to elaborate the principles of
constructive trusts based on unjust enrichment. Relying on the view expressed by
Laskin]., in his dissent in Murdoch, Dickson]. maintained that this doctrine was as
equally applicable as the doctrine of resulting trusts to the facts of Rathwell. He
declined to accept the criticism of the constructive trust approach expressed by the
majority of the Supreme Court in Rathwell. This part of Dickson J.'s judgment was
of course obiter. However it was an important stage in the development of the
acceptance of the constructive trust based on unjust enrichment in Canada.

Dickson J. recognised the inherent difficulties in finding an agreement between
parties in familial circumstances. He explained that, "the property is acquired
during a period where there is marital accord. When this gives way to discord,
problems arise in respect of property division. There is seldom prior express
agreement. There is rarely implied agreement or common intention, apart from
the general intention of building life together. It is not in the nature of things for
young married people to contemplate the break-up of their marriage and the
division, in that event, of assets acquired by common effort during wedlock.,,36

The charge had been made against the intention based resulting trust as
involving "a meaningless ritual in searching for a phantom intent.,,37 Dickson J.
accepted this charge. He then attempted to liberate the law from that meaningless
ritual. He expressed the view that the doctrine of the constructive trust based on
the concept of unjust enrichment was a more flexible doctrine than the intention
based resulting trust. He explained that, "The hallmark of the constructive trust is
that it is imposed irrespective of intention; indeed, it is imposed quite against the
wishes of the constructive trustee. ,,38 Dickson J. was not prepared to impose such
a trust without a principled base. He maintained that three requirements were
required for the doctrine of unjust enrichment to apply and elaborated them. First,
there must be an unjust enrichment. Second, there must be a corresponding
deprivation to the claimant of the constructive trust. Third, there must be an
absence of any juristic reason - such as a contract or disposition of law - for the

35. Rathwell v. Rathwell 83 D.L.R. (3d) 289, at p.297. See also Frank Bates, (1979) NLJ 288;
McCamus and Taman, (1978) 16 OsgoodeHall L. Journ. 741; (1981) 2. 279 Supreme Court L. Rev.
316.

36. Ibid., at p.294. See also Dwyerv. Luve 67 D.L.R. (3d) 550.
37. Rathwell v. Rathwell 83 D.L.R. (3d) 289, at p.301.
38. Ibid., at p.305.

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enrichment. If these requirements' were fulfilled, a constructive trust could be
imposed, providing that a causal relationship could be shown between the disputed
property and the unjust enrichment.

Dickson J. accepted that a causal relationship did exist in Rathwell. He rejected
the argument that the causal connection existed only between Mr Rathwell's
unjust enrichment and a small portion of Mr Rathwell's property, including the
family homestead. He reasoned that, "The Rathwells worked and operated all of
the lands as one farm, a family farm in which husband and wife shared control and
operating responsibilities. Although the causal connection may be clearer when
the couples save money to buy the house in which they reside, there is no reason
on the authorities, or in principle, why the application of a constructive trust
should be confined to a homestead, or to a matrimonial home. The outcome in a
matrimonial property case should not depend upon the nature of the property in
dispute.,,40

The decision in Pettkus v. Becker - constructive trusts based on unjust
enrichment
Less than a decade after it was suggested that the adoption by the Canadian courts
of constructive trusts based on unjust enrichment could not happen the Supreme
Court, in Pettkus v. Becker,41 imposed such a trust. A majority of the Supreme
Court finally buried the resulting trust based on the artificial extension of the
presumed resulting trust.42 Dickson]., givingjudgment on behalf of s~ of the nine
members of the Supreme Court, firmly established the doctrine of constructive
trust based on unjust enrichment as part of the common law of Canada.

Lothar Pettkus, the appellant, was a bee keeper. He had lived with the
respondent, Rosa Becker, for almost 20 years. They had lived frugally. Rosa
Becker paid the rent, bought the food and clothing and paid for other living
expenses. Lothar Pettkus was thus enabled to save his earnings. He eventually
purchased a farm in his sole name, using those savings. He established a bee
keeping business. Rosa Becker worked hard in this enterprise for 14 years but
received no remuneration for her efforts.

Further properties were purchased in the name of Lothar Pettkus using moneys
from the bee keeping business. After a deterioration in the relationship, Rosa
Becker departed. Lothar Pettkus gave her $3,000, the car and 10% of the bee
hives. She returned three months later and returned the gifts. It was agreed that
they would resume their relationship, that a joint bank account would be opened
and all receipts from the sale of honey could be deposited in that account. The
parties built a new house on land previously purchased in Lothar Pettkus' name.

39. Ibid.; c.f Ruffv. SIrobel86 D.L.R. (3d) 284.
40. Ralhwell v. Ralhwell 83 D.L.R. (3d) 289, at p.308.
41. Peukus v. Becker 117 D.L.R. (3d) 257. See also A. J. McLean, (1982) 16 U.B.C. L. Rev. ISS;

(1982) 3. 361 Supreme Court L. Rev.; Bradley, (1982) Fam. Law 21.
42. Ibid.

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The cost of construction was paid for by moneys from the bee keeping business.
The relationship between the parties did not survive. Rosa Becker finally departed
the property. She claimed a half share in all the properties held in Lothar Pettkus'
name.

The Ontario Court of Appeal varied the judgment at trial. It imposed a
constructive trust on the respondent. Rosa Becker was to receive a half share in
Lothar Pettkus' lands and the bee keeping business. He appealed to the Supreme
Court. Dickson J. was given the opportunity he had awaited since Rathwell. He
wished to end the judicial quest for that fugitive common intention which had so
far been essential to found a resulting trust.

The parties to the dispute in Pettkus v. Becker43 had no express common
intention. The trial judge had found that Rosa Becker's contribution to the
household expenses prior to the acquisition of the first property, "was in the nature
of risk capital invested in the hope of seducing a younger defendant into
marriage.,,44 Dickson J. found this statement somewhat lacking in gallantry.
Ritchie J., in stronger terms, declared it to be gratuitously insulting. The Ontario
Court of Appeal had upheld the finding at trial that there was no common
intention. Ritchie J. was prepared to disregard that finding. In a majority
judgment, he held that a resulting trust had arisen on the facts.45 But Dickson J.
was not prepared to overrule the finding of the trial judge and the Ontario Court of
Appeal. .

There could not have been a more opportune moment for the introduction of
the doctrine of unjust enrichment into familial property disputes. The
fact-situation clearly demanded a remedy. The evidence was such that a resulting
trust based on an inferred common intention from financial contributions, could
have been imposed had it not been for the earlier findings of the trial judge and the
Ontario Court of Appeal.46

Dickson J. reiterated the principles of unjust enrichment which he had laid
down in diaa in Rathwell. Three requirements had to be satisfied to find an unjust
enrichment, an enrichment, a corresponding deprivation and the absence of any
juristic reason for the enrichment. For the court to impose the remedy of a
constructive trust based on unjust enrichment there must be a casual relationship
between the unjust enrichment and the disputed property.47 Lothar Pettkus had
been enriched by Rosa Becker's nineteen years of unpaid labour. She had been
correspondingly deprived during that time. The third requirement was fulfilled,
according to Dickson J., if "one person in a relationship tantamount to spousal
prejudices herself in the reasonable expectation of receiving an interest in the
property and the other person in the relationship freely accepts benefits conferred

43. Ibid.
44. Ibid.
45. Ibid.
46. Ibid.
47. Ibid. See also D. Waters, Law ofTmsts of Callada, 2nd. Ed. (1984).

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by the first person in circumstances where he knows or ought to have known of
that reasonable expectation. ,,48 This third requirement implies that once a
reasonable expectation comes to the knowledge of the legal title holder he is under
a duty to refuse the contribution of the claimant. If he accepts it, he has acquiesced
in the claimant's expectation and must give effect to it. The language in which the
third requirement is couched is reminiscent of the English concept of proprietary
estoppel. 49

It can reasonably be questioned whether this third requirement is little more
than "common intention" by another name. If the claimant must have a reasonable
expectation that she would receive an interest in the legal title holder's property
and the latter must know or ought to have known of that expectation, there would
appear to be a requirement of an implied common intention. For if the title holder
does not reject the contribution he is implying that he shares the claimant's
expectation concerning his property. The Canadian Courts have not accepted
such an interpretation. A liberal view of this third requirement has been taken.
The burden of proof is on the legal title holder to demonstrate that his enrichment,
at the expense of the claimant, was without knowledge of the claimant's
expectation.50 If he cannot satisfY this burden of proof the courts have been
prepared to impute the necessary reasonable expectation even where the claimant
has clearly not given any thought as to what was her expectation.51 By imposing a
principled basis for the constructive trust, Dickson J. was able to evade the
accusations of administering palm tree justice which were levelled at Lord
Denning M.R.'s attempts to impose constructive trusts where justice, equity and
good conscience required it.52

Once the concept of a constructive trust based on unjust enrichment had
become accepted law in Canada, the way was opened for the recognition of
domestic contribution as unjust enrichment.

The recognition of domestic contribution as unjust enrichment in Sorochan
v. Sorochan
The Supreme Court in Sorochan v. Sorochan53 finally recognised that domestic
contribution could equally unjustly enrich a legal title holder as financial
contributions. The parties in Sorochan, Mary and Alex Sorochan, had lived

48. Pettklls v. Becker 117 D.L.R. (3d) 257. If the relationship is of short duration the courts have not
been prepared to grant a constructive trust remedy: see Neiderberger v. Met/mook 130 D.L.R. (3d)
353. Where the relationship is actually spousal the parties are more likely to use matrimonial
legislation (see R.Sa 1980 c.152) but there remain circumstances where spouses may need to
plead a constructive trust: see Rankin, (1984) 17.72 Duawa L. Rev. 79.

49. A comparison of the doctrine of proprietary estoppel and the doctrine of unjust enrichment has
been made in an unpublished thesis by the author of this article.

50. See Girard, (1983) 28 McGill L. JOllm. 977, at p.l000.
51. This was indeed the case in Pettklls v. Becker itself.
52. See Hodkinson, (1983) 47 Conv. (N.S.) 420.
53. Sorochan v. Sorochan 29 D.L.R. (4th) 1.

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together in a de ftao relationship for 42 years. They worked the family farm
together and produced six children. Mary Sorochan did all the domestic labour
associated with running the household and caring for the children. She also
laboured long hours alone on the family farm whilst her defacto husband worked as
a travelling salesman. The Alberta Court of Appeal had reversed the trial judge's
finding of a constructive trust in favour of the appellant. It held that there was no
casual connection between her contribution of labour and the acquisition of the
property by the respondent.

Judgment in the Supreme Court was given by Dickson C. J. c. He did not
differentiate between the appellant's domestic contribution to the household and
her labour on the farm. He held that the respondent had derived a benefit from
both types oflabour. According to Dickson C. J. c., this benefit included valuable
savings from having essential farm services and domestic work performed by the
appellant without having to provide remuneration. Dickson C. J. C. was reinforced
in his refusal to differentiate between domestic contribution and other types of
labour by the judgment of the Alberta Court of Queen's Bench in Hennan v.
Smith.54 This case concerned a claim of a constructive trust based on a
contribution of domestic labour alone. The Alberta Court held that the rendering
of normal spousal services, by the woman, amounted to a valuable service which
resulted in an enrichment to the man and a corresponding deprivation to the
woman. In the Sorochan Case Mary Sorochan was equally held to have enriched
her de faao husband to her corresponding deprivation. There was no juristic
reason for the enrichment. The Supreme Court held that there was no obligation
contractual or otherwise by Mary Sorochan to perform domestic or other labour.
She had a reasonable expectation of receiving some benefit in return for her 42
years of labour. She had asked Alex Sorochan to marry her and to place property
in her name. These two incidents convinced Dickson C. J. c. that Alex Sorochan
ought to have known that his defaao wife had a reasonable expectation of obtaining
a share in the land.

Alex Sorochan already owned the disputed land when Mary Sorochan went to
live with him. It was, therefore, argued by counsel for the respondent, that there
could be no causal relationship between her contribution of domestic and farm
labour and his acquisition of the property. The Supreme Court rejected this
narrow view as treating "a particular manifestation of the rule as the rule itself.,,55
It articulated a more general causal connection test. There should merely be a
clear link between the contribution and the disputed asset. The courts must ask
whether the contribution is sufficiently substantial and direct to entitle the plaintiff
to a share of the property in question. Cary J. A., in Murray v. Roty,56 a decision of
the Ontario Court of Appeal, had already employed the general causal connection

54. Herman v. Smith (198+) Alta L.R. 2nd 90. See also Lawrence v. Lilulsey (1982) 21 Alta L.R.
(2nd) 141.

55. Sorochan v. Sorochan 29 D.L.R. 4th 1, at p.8.
56. Murray v. Roty 147 D.L.R. (3d) 438, at p.445.

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test. He explained that domestic activity maintains and preserves the property. In
that sense it is substantial and direct. It also releases the legal tide holder from
having to pay for domestic help, or from having to do it himself. The money or
time saved permits him to improve and maintain his property either by payments to
another, using the money saved, or by his own efforts, using the time saved.57

It would seem from the Sorochan case that the principle of unjust enrichment
has been broadened. Will there be any relationship involving joint participation in
a communal, familial venture which will be able to evade the imposition of a
constructive trust?

Conclusion
The Canadian Supreme court has finally recognized that domestic contribution is
of equal value as financial contribution in trusts of property in the familial context.
It is a realistic acknowledgement that living in a familial relationship is a common
enterprise; each member contributes according to his abilities and to the needs of
the other members of the household. If the common enterprise breaks down, its
property will be distributed in accordance with those contributions; financial
contributions will not be valued more highly than domestic contributions.

Lord Simon of Glaisdale, at one time President of the Family Division of the
English High Court, had already recognised, in an address to the Holdsworth
Club of Birmingham University, more than 20 years ago, that "Men can only earn
their incomes and accumulate capital by virtue of the division of labour between
themselves and their wives. The wife spends her youth and early middle age in
bearing and rearing children and in tending the home; the husband is thus freed
for his economic activities. Unless the wife plays her part the husband cannot play
his. The cock bird can feather his nest precisely because he is not required to
spend most of his time sitting on it. ,,58

The Canadian Supreme Court has acknowledged the truth of Lord Simon's
view of the co-operative nature of the familial enterprise. Will other
Commonwealth jurisdictions be prepared to adopt the Canadian approach to the
constructive trust in the familial context?59 Such an adoption would be a fitting
memorial to the death of Rosa Becker on the legal battle ground of the family
home.

57. Cf A.J. Oosterhoff, (1979) 58 Can. Bar Rev. 356, at p.370.
58. "With All My Worldly Goods ... " (Address to the Holdsworth Club, University of Birmingham,

20th March 1964), p.32.
59. The New Zealand Court of Appeal, in Hayward v. Giordani [1983] N.Z.L.R. 140, at p.153 per

McMullin J., accepted that the Canadian approach had much to commend it. It was able to find a
constructive trust based on an express common intention and therefore found it unnecessary to
consider whether the doctrine of unjust enrichment should be given a place in the Law of New
Zealand. See also Easton, (1982) 12 V.U. W.L.R. 159; Goff and Jones, The Law of Restitution, 3rd
Ed. (1986); (1983) Conv. (N.S.) 420.

161