DON’T FORGET TO PLEAD “JOINT FAMILY VENTURE”
That was the message in the Ontario Court of Appeal case of Djekic v. Zai, 2015 ONCA 25.
In that case, the wife invested money and personal labour in the purchase and upkeep of a commercial property. The lower court judge found that there was an unjust enrichment.
The test of unjust enrichment is
- An enrichment by one party;
- The detriment by another party; and
- No legal reason to justify this situation
Please see Peter v. Beblow, 1993 CanLII 126 (SCC),  1 S.C.R. 980.
The wife was compensated with a payment of $101 000.00. The trial judge was vague regarding the source of this number but the justices of the Court of Appeal were sympathetic given the complexity of the financial situation of the parties.
The wife, however, wanted one-half (1/2) of the equity of the commercial property. She argued that it was a joint family venture.
The test for joint family venture is as follows:
- mutual effort;
- economic integration;
- actual interest; and
- priority of the family
Please see Kerr v. Baranow, 2011 SCC 10 (CanLII),  1 S.C.R. 269
K.M. Weiler J.A., who wrote this unanimous decision, held that there is no record at the lower court to decide the issue, specifically.
- The issue of joint family venture was not plead or argued;
- There was no appraisal on the worth of the property;
- No finding of fact as to whether the wife’s money was an investment or a loan;
- The financial arrangement was so complex that guestimates were only possible at any event.
Weiler J.A. held that, in essence, the Court of Appeal could not find something clearly wrong on the record to justify an appeal. The wife’s appeal, in this regard, was dismissed.