Rathwell v. Rathwell

Rathwell v. Rathwell
Collection
Supreme Court Judgments
Date
1978-01-19
Report
[1978] 2 SCR 436
Judges
Laskin, Bora; Martland, Ronald; Judson, Wilfred; Ritchie, Roland Almon; Spence, Wishart Flett; Pigeon, Louis-Philippe; Dickson, Robert George Brian; Beetz, Jean; de Grandpré, Louis-Philippe
On appeal from
Saskatchewan
Subjects
Family law
Decision Content
SUPREME COURT OF CANADA
Rathwell v. Rathwell, [1978] 2 S.C.R. 436
Date: 1978-01-19
Lloyd William Thomas Rathwell
(Defendant) Appellant;
and
Helen Marie Rathwell (Plaintiff) Respondent.
1977: May 10, 11; 1978: January 19.
Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR SASKATCHEWAN
Husband and wife — Matrimonial property — Farmlands registered in husband's name — Purchases paid for in part out of joint account — Contribution by wife of both money and labour to farming operation — Intention of parties to treat operation as joint venture — Wife's claim to half-interest — Application of doctrine of resulting trust — Constructive trust,
The appellant and the respondent (Mr, and Mrs. Rathwell) were married on July 4, 1944. He was a soldier, 24 years of age. She was an administrative clerk in the Royal Canadian Air Force, 21 years of age. Six months later she left the Air Force and went to live with her husband's parents on their farm. He was posted overseas. Following his return to Canada and discharge from the Army, the appellant and his wife decided to make farming their way of life.
They opened a joint bank account in which their wartime savings (about $700 each) were deposited. It was the only account they ever had. During their mar­ried life all the moneys they received, or to which they became entitled, went into the joint account and all payments, for whatever purpose, were made therefrom.
In 1946, moneys from the joint account were used to provide the $780 initial payment on two quarter-sections of land purchased under the Veterans' Land Act . The balance of the purchase price, amounting to $4,020, was paid by delivery each year of one-sixth of the grain harvested.
A second land purchase, also under the Veterans' Land Act , was made in 1947 and consisted of two adjoining quarter-sections. The down payment of $1,000 again came from the joint account and the balance of $6,000 was met by crop share payments. A third purchase (in excess of a section) was made in 1958. The price was $7,000 of which $4,000 was paid from the joint account. The balance was satisfied through farm work, such as combining, seeding and summer fallowing, done by Mr. Rathwell for the vendor of the land.
Title to all of the above lands issued in Mr. Rathwell's name, in 1957 and 1959. There was no discussion be­tween him and his wife concerning beneficial ownership of the land, apart from the statement by him from time to time that the lands were "ours". According to Mr. Rathwell, they were "working together as a husband and wife in the farming business". The venture was a "joint effort" in which, Mr. Rathwell said, he and his wife "worked as a team, to start with". Mr. Rathwell acknowledged that his wife contributed "to an extent". In fact, it was to a considerable extent. Mrs. Rathwell did the chores when her husband was busy on the land; she looked after the garden and canned the produce; she milked cows and sold the cream; she drove machinery, bailed hay, provided meals and transportation for hired help and kept the books and records of the farming operation. Often, while Mr. Rathwell worked the fields, she fulfilled his obligations under a contract to drive the school bus. She raised and educated four children.
Marital difficulties led to the separation of Mr. and Mrs. Rathwell in 1967. Thereafter, Mr. Rathwell, with the agreement of his wife, leased the lands to their son, Duane, and mortgaged part of the lands to raise money for the purchase of other property for Duane. Mrs. Rathwell, to further her son's interests, released her homestead rights to the mortgagee.
Although Mr. Rathwell ceased farming in 1970, he acquired from his mother, in 1971, two further quarter-sections of land for $2,000. The acquisition was largely by way of gift, as the value of the land far exceeded the price paid.
An action was commenced by Mrs. Rathwell for a declaration that she had an interest in one-half of all real and personal property owned by her husband, and for an accounting of all income and benefits returned by the property. Both the trial judge and the Court of Appeal for Saskatchewan rejected any claim by Mrs. Rathwell in respect of the lands purchased in 1971. The trial judge rejected her claim entirely. Two of the judges, who constituted the majority of the Court of Appeal, declared that Mrs. Rathwell had an undivided one-half interest in all the other lands. Brownridge J.A. was of the opinion that Mrs. Rathwell was entitled to an undivided one-half interest in the lands which were purchased in 1946 and 1947, but not in the lands purchased in 1958.
Mr. Rathwell appealed from the judgment of the Court of Appeal to this Court.
Held (Martland, Judson, Beetz and de Grandpré JJ. dissenting in part): The appeal should be dismissed.
Per Laskin C.J. and Spence and Dickson JJ.: The respondent must succeed whether one applies either the doctrine of resulting trust or the doctrine of constructive trust. Each is available to sustain her claim. The pre­sumption of common intention from her contribution in money and money's worth entitles her to succeed in resulting trust. Her husband's unjust enrichment entitles her to succeed in constructive trust.
The appellant advanced, in support of the position that the presumption that a resulting trust had been rebutted, the following points: (i) Mrs. Rathwell had never questioned the registration of title in his name; (ii) she had delayed inordinately in advancing a claim; (iii) the filing of homestead caveats against two of the quarter-sections and a further caveat against a third quarter-section; in the last-mentioned caveat she claimed a one-tenth interest in the quarter-section on the ground that she had advanced one-tenth of the purchase price. The caveats were filed following a threat by Mr. Rathwell to sell all the lands; they were filed for the purpose of giving notice of her claim to an interest in the three quarter-sections. Her assertion at that time to a claim something less than her present entitlement does not defeat the latter. None of the three grounds had merit.
The submission that the courts will limit the applica­tion of the doctrine of resulting trust to the "matrimoni­al property", and not extend it to "business property", because to do otherwise is, in effect, to declare a part­nership between the husband and wife, failed. What was being dealt with here was not the husband's business property. It was matrimonial property in the true sense. While most of the cases in which the wife has succeeded in establishing her interest in land have been concerned with matrimonial homes, this was not exclusively so: Nixon v. Nixon, [1969] 3 All E.R. 1133 (market stall); Re Cummins, [1971] 3 All E.R. 782 (vegetable shop); Dillon v, Dillon, [1956] N.Z.L.R. 162 (combined dwell­ing and service station).
The submission also failed that the Court of Appeal erred in law in overruling a finding of fact by the trial judge that the presumption of resulting trust in favour of the respondent had been rebutted on the evidence. There was no evidence capable of rebutting the presumption that the respondent, as a contributor to the purchase price, would take an interest in the lands. Although an appellate court should be slow to reverse findings of fact below, there is no doubt as to the right to do so when, after full consideration, the court concludes that the judgment below is plainly wrong.
In the absence of agreement to the contrary, a one-half interest in any investment purchased by a husband from a common pool of funds, in the circumstances of the present case, will be considered to be held by him for the benefit of his wife. Legal title will be held in trust for both parties jointly. As to the first land purchase, the respondent's direct financial contribution was clear. As to the second and third purchases, the respondent's claim to a beneficial interest can rest on her continuing one-half interest in the joint bank account and the use of funds therefrom to effect the purchase. Moneys deposited to the account represented the proceeds from the sale of the produce from land of which she was a one-half owner. The proceeds were impressed with a trust in her favour.
The proper quantum inference to make in respect of the second and third purchases, as with the first, is a half-share held on resulting trust. No presumption of resulting trust arises with respect to the purchase from the appellant's mother. This purchase was made subse­quent to severance of the joint bank account and separa­tion of the parties. The respondent cannot, therefore, be taken to have contributed to its acquisition either by capital or labour.
Analyzing the facts from the remedial perspective of constructive trust, it was clear that only through the efforts of the respondent was the appellant able to acquire the lands in question. Assuming, arguendo, that the respondent had made no capital contribution to the acquisitions, it would be unjust, in all of the circum­stances, to allow the appellant to retain the benefits of his wife's labours. His acquisition of legal title was made possible only through "joint effort" and "team work" as he himself testified; he cannot now deny his wife's beneficial entitlement.
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 property which is subject to the trust in the respondent's favour is all of the property acquired in whole, or in part, from the contributions, direct and indirect, of the respondent,
The argument that the respondent should be denied a proprietary interest because she was awarded $250 per month maintenance was rejected. As held by the Court of Appeal in the present case, an order for alimony and maintenance in her favour does not bar a wife from seeking a further order declaring that she has an equita­ble proprietary interest. The two forms of relief are obtained in separate actions based on different legal rights. They are related only to the extent that the wife's success in the latter proceeding may permit the husband to seek a change in the award of alimony and mainte­nance in the earlier proceeding.
Per Ritchie and Pigeon JJ.: The initial contribution made by the respondent to the joint account which was used in making the first payment on the two quarter-sec­tions of land which were registered in the husband's name in 1946 constituted evidence of the intention of the parties to treat the farming operation on which they were embarking as a joint venture, The two subsequent purchases which added to the farm lands were paid for in part out of the same joint account and in part from the produce of the lands, and they were impressed with a resulting trust in favour of the wife stemming from the intention of the parties evidenced by her original contribution.
In view of this conclusion, it was not found that any determination as to the application of the doctrine of constructive trusts or unjust enrichment was necessary to the determination of the questions raised in this appeal which are controlled by the fact of the respond­ent's financial contribution.
Per Martland, Judson, Beetz and de Grandpré JJ., dissenting in part: There was evidence upon which the Court of Appeal could properly determine that the respondent was entitled to some interest in the lands. However, the fact that the respondent was entitled to some interest did not necessarily mean that she should have an equal interest.
There was clear evidence that the respondent did not consider that there had been any common intention that she should have an equal share with her husband in all of the lands which he acquired. In 1971, some four years after the parties separated, the appellant indicated to the respondent the possibility that he might dispose of the lands. The respondent thereupon consulted a solicitor and later filed homestead caveats against two quarter-sections, each of which had been, at one time, the parties' homestead. She also filed a caveat against a third quarter-section, claiming, in respect of that land, an interest under a trust for a one-tenth interest, she having advanced to the appellant ten per cent of the purchase price of that land. The caveat was accom­panied by the respondent's affidavit that the allegations in the caveat were true in substance and in fact, to the best of her knowledge, information and belief. No caveat was filed by the respondent against any of the other lands.
As to what the respondent's share should be, the evidence showed that the appellant's efforts in acquiring and farming the various lands were greater than the respondent's contribution to the farming operation. He worked the lands and thus produced the means of payment of the major portion of the purchase price for the first two land purchases. The bulk of the funds which went into the joint bank account was provided by the sale of his share of the produce from the lands.
Brownridge J.A. determined on an apportionment which gave the respondent an undivided one-half interest in the lands obtained by the first two purchases. Two of those four quarter-sections, for a time, became the homestead of the parties. His determination of the respective interests of the parties was a reasonable one and should be accepted.
There should be no application, in cases of this kind, of a doctrine of constructive trust as a means of prevent­ing unjust enrichment. The areas to which the doctrine of constructive trust have been applied heretofore are those in which a trustee or a fiduciary takes advantage of his position to make a profit for himself contrary to his duty as a trustee or fiduciary. It has also been applied in cases where a person, having knowledge of an existing trust, acquires legal title to the trust property. It has not been extended to enable a court to allocate property between a husband and a wife on the basis of a broad discretion as to what the court considers would be just and equitable. The circumstances in which such an allocation could be made, if they are to be extended beyond the scope of existing law, should be determined, as a matter of public policy, by legislation.
[Rimmer v. Rimmer, [1953] I Q.B. 63; Pettitt v. Pettitt, [1970] A.C. 777; Gissing v. Gissing, [1971] A.C. 886; Murdoch v. Murdoch, [1975] 1 S.C.R. 423; Thompson v. Thompson, [1961] S.C.R, 3; Deglman v. Guaranty Trust Co., [1954] S.C.R. 725; Appleton v. Appleton, [1965] 1 W.L.R. 25; Balaberda v. Mucha (1960), 25 D.L.R. (2d) 760; In re Vandervell's Trusts (No. 2), [1974] Ch. 269; Hili v. Bishop of London (1738), 1 Atk. 618; Dyer v. Dyer (1788), 2 Cox Eq. Cas. 92; Barton v. Muir (1874), 44 L.J.P.C. 19; The Venture (1908), 77 L.J.P.C. 105; Rider v. Kidder (1805), 10 Ves. 360; Re Taylor, [1971] 1 O.R. 715; Fribance v, Fribance, [1957] 1 W.L.R. 384; Re Cummins, [1971] 3 All E.R. 782; Fiedler v. Fiedler, [1975] 3 W.W.R. 681; Barnes v. Addy (1874), 9 Ch. App. 244; Soar v. Ash-well, [1893] 2 Q.B. 390; Hussey v. Palmer, [1972] 1 W.L.R. 1286; Peter Kiewit Sons' Co. of Canada v. Eakins Construction Ltd., [1960] S.C.R. 361; Coghlan v. Cumberland, [1898] 1 Ch. 704; Annable v. Coventry (1912), 46 S.C.R. 573; Jones v. Maynard, [1951] 1 All E.R. 802; National Provincial Bank Ltd. v. Bishop, [1965] Ch. 450; Daly v. Brown (1907), 39 S.C.R. 122; Re Rogers, [1948] 1 All E.R. 328; Truman v. Trueman, [1971] 2 W.W.R. 688; Hine v. Hine, [1962] 1 W.L.R. 1124, referred to.]
APPEAL from a judgment of the Court of Appeal for Saskatchewan[1], allowing an appeal from a judgment of Disbery J. who dismissed the respondent wife's action for a declaration that she had an interest in one-half of all real and personal property owned by her husband and for an accounting. Appeal dismissed, Martland, Judson, Beetz and de Grandpré JJ. dissenting in part.
R. Thompson and G. A. Maurice, for the defendant, appellant.
M. C. Shumiatcher, Q.C., and E. J. Neufeld, for the plaintiff, respondent.
The judgment of Laskin C.J. and Spence and Dickson JJ. was delivered by
DICKSON J.—
I
This appeal affords the Court an opportunity of again considering the juridical basis for the resolu­tion of matrimonial property disputes. The settlement of such disputes has been bedevilled by con­flicting doctrine and a continuing struggle between the "justice and equity" school, with Rimmer v. Rimmer[2], the leading case and Lord Denning the dominant exponent, and the "intent" school, re­flected in several of the speeches delivered in the House of Lords in Pettitt v. Pettitt[3] and Gissing v. Gissing[4], and in the judgment of this Court in Murdoch v. Murdoch[5]. The charge raised against the former school is that of dispensing "palmtree" justice; against the latter school, that of meaning-less ritual in searching for a phantom intent. In England, in spite of apparent reversal in Pettitt and in Gissing, the justice and equity tide flowed unabated until, in 1970, Parliament effectively removed matrimonial property disputes in England from the common law by enacting the Matrimoni­al Proceedings and Property Act, 1970, c. 45, the relevant provisions of which are now contained in the Matrimonial Causes Act, 1973, c. 18.
In earlier days the view was taken that on marriage "man and woman are one and that one is the man." The introduction generally of Married Women's Property Acts made it possible for wives to hold separate property but did little otherwise to improve the lot of married women. The custom by which real estate acquired by a married couple was taken in the name of the husband, coupled with the reverence paid to registered title, militat­ed against wives. The view expressed in Rimmer that matrimonial property ought not to be gov­erned by the strict considerations commonly applied between strangers survived Gissing and Pettitt, but was coldly received by this Court in Thompson v. Thompson[6].
Many factors, legal and non-legal, have emerged to modify the position of earlier days. Among these factors are a more enlightened attitude toward the status of women, altered life-styles, dynamic socio-economic changes. Increasingly, the work of a woman in the management of the home and rearing of the children, as wife and mother, is recognized as an economic contribution to the family unit.
Canadian legislatures generally have given little or no guidance for the resolution of matrimonial property disputes, with the result that laws applied are perforce judge-made laws. An exception will be found in an amendment (1974-75 (Sask.), c. 29) to The Married Women's Property Act of Saskatchewan, R.S.S. 1965, c. 340, which came into force on May 19, 1975, after the trial in the present case.
On the legal front, acceptance of the notion of restitution and unjust enrichment in Canadian jurisprudence (Deglman v. Guaranty Trust Company[7]) has opened the way to recognition of the constructive trust as an available and useful remedial tool in resolving matrimonial property disputes. Lacking that, a court is reduced to searching for actual, inferred or, possibly, imputed agreement (common intent) when the plain fact is that there rarely is agreement because the parties do not turn their minds to the eventuality of separation and divorce. With these prefatory observations I turn to the facts of the instant appeal.
II
Mr. and Mrs. Rathwell were married on July 4, 1944. He was a soldier, 24 years of age. She was an administrative clerk in the Royal Canadian Air Force, 21 years of age. Six months later she left the Air Force and went to live with his parents on their farm in the Tompkins District in the Province of Saskatchewan. He was posted overseas. Follow­ing return to Canada and discharge from the Army, he and his wife decided to make farming their way of life.
They opened a joint bank account in which their wartime savings (about $700 each) were deposited. It was the only account they ever had. During their married life all the moneys they received, or to which either became entitled, went into the joint account and all payments, for whatever purpose, were made therefrom.
In 1946, moneys from the joint account were used to provide the $780 initial payment on two quarter-sections of land (SE ¼ Section 20; SW Section 21: Township 13, Range 20, West 3rd) purchased under the Veterans' Land Act, R.S.C. 1970, c. V-4 . The balance of the purchase price, amounting to $4,020, was paid by delivery each year of one-sixth of the grain harvested.
A second land purchase, also under the Veter­ans' Land Act, was made in 1947 and consisted of two adjoining quarter-sections (NW Section 17, SW ½ Section 20: in the same Township and Range). The down payment of $1,000 again came from the joint account and the balance of $6,000 was met by crop share payments.
A third purchase was made in 1958 (S½ Section 12; N½ Section 1; Part SE¼ Section 1: Township 13, Range 21, West 3rd). The price was $7,000 of which $4,000 was paid from the joint account. The balance was satisfied through farm work, such as combining, seeding and summer fallowing, done by Mr. Rathwell for the vendor of the land.
Title to all of the lands to which I have referred issued in Mr. Rathwell's name, in 1957 and 1959. There was no discussion between him and his wife concerning beneficial ownership of the land, apart from the statement by him from time to time that the lands were "ours".
It is clear from the evidence that Mr. and Mrs. Rathwell worked hard; they saved their money and they bought land. According to Mr. Rathwell, they were "working together as a husband and wife in the farming business." The venture was a "joint effort" in which, Mr. Rathwell said, he and his wife "worked as a team, to start with." Mr. Rathwell acknowledged that his wife contributed "to an extent." It was to a considerable extent. Mrs. Rathwell did the chores when her husband was busy on the land; she looked after the garden and canned the produce; she milked cows and sold the cream; she drove machinery, bailed hay, provided meals and transportation for hired help and kept the books and records of the farming operation. Often, while Mr. Rathwell worked the fields, she fulfilled his obligations under a contract to drive the school bus. She raised and educated four chil­dren. Mr. Justice Woods, of the Saskatchewan Court of Appeal, made the observation, which I think correct that, to grain-belt farmers, the kitchen was just as much an integral part of the farm­ing operation as the feed lot, or the machine shed.
Marital difficulties led to the separation of Mr. and Mrs. Rathwell in 1967. Thereafter, Mr. Rathwell, with the agreement of his wife, leased the lands to their son, Duane, and mortgaged part of the lands to raise money for the purchase of other property for Duane. Mrs. Rathwell, to further her son's interests, released her homestead rights to the mortgagee.
Although Mr. Rathwell ceased farming in 1970, he acquired from his mother, in 1971, two further quarter-sections of land (NW ¼ Section 6, Township 15, Range 22, W. 3rd; NE Section 35, Township 14, Range 23, W. 3rd) for $2,000. The acquisition was largely by way of gift, as the value of the land far exceeded the price paid.
III
Mrs. Rathwell commenced an action in the Sas­katchewan Courts for a declaration that she had an interest in one-half of all real and personal property owned by her husband, and for an accounting of all income and benefits returned by the property. Disbery J. dismissed the action and, in doing so, made the following significant findings of fact: (i) that the joint bank account was "a common purse intended for the use of both of them"; (ii) that Mrs. Rathwell made no contribu­tion to the acquisition of the real or personal farm assets by way of labour; (iii) that there was no agreement between the parties that Mrs. Rathwell was to have a proprietary interest in the farm assets; (iv) that taken as a whole the evidence rebutted any presumption of interest of the wife created by the fact of her contribution to the joint account.
The Court of Appeal for Saskatchewan reversed the trial judge. Woods J.A, noted that it was "very clear to me that there was an agreement to share at the start and that it carried through until the marital differences developed"; on that basis he was prepared to award Mrs. Rathwell a one-half interest in all the lands—excepting those acquired from Mr. Rathwell's mother—and an accounting. Hall J.A. agreed with that result, but his reasoning differed from that of Mr. Justice Woods. He was of the opinion that there was no evidence as to intention at the time the joint bank account was opened, nor at the time the first land purchase was made; that through her monetary contribution Mrs. Rathwell acquired an interest in subsequent deposits to the joint account and in all purchases of land made from the joint account. Brownridge J.A. found evidence of an agreement to share in the assets Mrs. Rathwell helped create; alterna­tively, if common intention were lacking, Mrs. Rathwell could assert an equitable claim in con­structive trust against the two purchases made in 1946 and 1947. Mr. Justice Brownridge did not explain why he differed from the other members of the Court in failing to find a trust in favour of Mrs. Rathwell in respect of the land, the subject of the third purchase.
IV
In broad terms matrimonial property disputes are much alike, differing only in detail. Matrimonial property, i.e. property acquired during matrimony (I avoid the term "family assets" with its doctrinal connotations) is ordinar­ily the subject-matter of the conflict. One or other, or both, of the spouses may have contributed financially to the purchase. One or other may have contributed freely given labour. The contribution may have been direct, or indirect in the sense of permitting the acquisition of an asset which would otherwise pot have been acquired. Such an indirect contribution may have been in money, or it may have been in other forms as, for example, through caring for the home and family. The property is acquired during a period when 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 a 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.
It would be wrong to think that the long line of cases on these matters is thoroughly consistent. It is not, as many distinguished academic commentators have been at pains to point out. One cannot help but notice as well the number of successful appeals. All of this suggests an uncertain and unstable state of law, but there is a certain inevita­bility about this in family law matters. The eco­nomic and human variables in a society are bound to be diffuse.
The need for certainty in matrimonial property disputes is unquestionable, but it is a certainty of legal principle hedging in a judicial discretion capable of redressing injustice and relieving oppression.
One limit to the exercise of that discretion is clear. If the husband and wife have agreed from the time of acquisition to hold the property in distinct shares on the basis of their contribution to the purchase price, or on some other basis, the plain duty of the court is to give effect to this agreement.
Another limit is equally clear. There is not, in the absence of legislative enactment, any such doctrine as "family assets" as was contended for in Appleton v. Appleton[8]. The mere fact of marriage does not bring any pre-nuptial property into com­munity ownership, or give the courts a discretion to apportion it on marital breakdown.
A third limit: Although equity is said to favour equality, it is not every contribution which will entitle a spouse to a one-half interest in the matrimonial property. The extent of the interest will be proportionate to the contribution, direct or indirect, of the spouse. Where the contributions are unequal, the shares will be unequal. A spouse who fails to make a contribution has no claim in justice to assets acquired wholly by the efforts of the other spouse.
Canadian common law does not recognize the concept of community of property, resulting from the sole fact of marriage. In the absence of legisla­tive provision to that effect, it is not proper for a court to upset current matrimonial property prac­tice by acting as if such an institution existed. This is a point of great importance and needs re-empha­sis here. See Pettitt v. Pettitt, supra, at p. 803. But it must also be noted that there is a considerable distinction between judicial legislation of commu­nity of property and judicial enforcement of the equitable doctrines of resulting and constructive trust. It is understandable that confusion between the two should arise in matrimonial property disputes for the apparent net effect of each is normal­ly a divestiture of property, or an interest in it, and transfer from the titled to the non-titled spouse. The essential difference, however, is that the dives­titure from community of property has as its source the fact of marriage; the divestiture in trust arises out of a common intention (resulting trust), or out of inequitable withholding resulting in an unjust enrichment (constructive trust).
V
In the well-known work, Underhill's Law Relat­ing to Trusts and Trustees (12th ed.), it is said (at p. 9) that trusts may be created:
(i) intentionally by the act of the settlor, in which case they are called express trusts, or
(ii) by implication of a court of equity, where the legal title to property is in one person and the equita­ble right to the beneficial enjoyment thereof is in another, in which case they are called constructive trusts.
Resulting trusts are treated under the head of constructive trusts, for the reason, it is said, that it would be extremely confusing to divide them into such as depend on intention, and such as do not. Notwithstanding the reluctance, the distinction is of practical importance. Constructive trusts are analyzed by the author as either resulting trusts, in which the equitable interest springs back or results to a settlor or his representatives, or non-resulting trusts; a resulting trust will be presumed in favour of a person who is proved to have paid the purchase money for real property in the character of purchaser if the real property is conveyed to another.
Maitland, on the other hand, suggested a divi­sion into trusts and quasi-trusts, thereby reflecting what is certainly true, that particular trusts arise by will of the settlor, and others arise independent­ly of that will, by operation of law: Maitland, Equity (1936), at p. 74. This latter division is particularly important where trusts of land are concerned, for by s, 7 of the English Statute of Frauds (received in Saskatchewan in 1870: Bala­berda v. Mucha[9]) trusts created by operation of law are exempt from the requirement of being evidenced by writing. Quasi-trusts are further div­isible into resulting trusts and constructive trusts.
In England whenever the resolution of property disputes falls to be decided according to trust law, the phrase "implied, resulting or constructive trust" is used, with little apparent effort to distin­guish the several types. Yet, they are different. Except in situations where there is a failure to exhaust the beneficial interest on the transfer of property, which is not the case in matrimonial property disputes, a resulting trust is concerned with the intent of the transferor: see In re Vandervell's Trusts[10] (No. 2), at pp. 294-5. In construc­tive trust the court imposes, irrespective of the intention of the parties but in accordance with good conscience, a duty upon A to hold title for B.
In the United States, where the concept of unjust enrichment enjoys a much greater acceptance than in England, the constructive trust, regarded as remedial, appears to have afforded a more flexible and satisfactory doctrinal base than the classical English institutional approach. Dean Roscoe Pound has referred to constructive trust as "purely a remedial institution" (33 Harv. L.Rev. 421).
VI
Resulting trusts are as firmly grounded in the settlor's intent as are express trusts, but with this difference—that the intent is inferred, or is pre­sumed as a matter of law from the circumstances of the case. That is very old doctrine, stated by Lord Hardwicke in Hill v. Bishop of London[11]. The law presumes that the holder of the legal title was not intended to take beneficially. There are certain situations—such as purchase in the name of another—where the law unfailingly raises the presumption of resulting trust: Dyer v. Dyer[12]; Barton v. Muir[13]; The Venture[14]. The presumption has always been regarded as rebuttable: Rider v. Kidder[15].
If at the dissolution of a marriage one spouse alone holds title to property, it is relevant for the court to ask whether or not there was a common intention, or agreement, that the other spouse was to take a beneficial interest in the property and, if so, what interest? Such agreements, as I have indicated, can rarely be evidenced concretely. It is relevant and necessary for the courts to look to the facts and circumstances surrounding the acquisi­tion, or improvement, of the property. If the wife without title has contributed, directly or indirectly, in money or money's worth, to acquisition or improvement, the doctrine of resulting trusts is engaged. An interest in the property is presumed to result to the one advancing the purchase moneys, or part of the purchase moneys. The principle is expressed thus in 19 Halsbury (3rd. ed.) para. 1372:
1372. Property purchased wholly or partly with wife's money. Where property is bought with money belonging to a wife and conveyed to her husband, there is a resulting trust in favour of the wife in the absence of proof by the husband of a contrary intention on her part.
…
Where property is purchased in the name of the husband or the wife, as a continuing provision for them during their joint lives, and both the husband and wife contribute towards the purchase price, the property belongs beneficially to the husband and wife in equal shares, in the absence of evidence justifying a determi­nation that the beneficial interests belong to them in some other shares.
To the same effect, see Thompson v. Thompson, supra, in which Cartwright J., although in dissent, did not differ from other members of the Court in saying, at p. 9:
When the husband used moneys of which the wife was joint owner with him to purchase a property and took the deed thereof in his .own name there arose a rebuttable presumption that he held as trustee for himself and his wife jointly.
The position is the same in respect of both spouses. In present social conditions the old pre­sumption of advancement has ceased to embody any credible inference of intention: see Pettitt v. Pettitt, supra, at pp. 793, 811, 815 and 824.
The presumption of a resulting trust is sometimes explained as the fact of contribution evidenc­ing an agreement; it has also been explained as a constructive agreement. All of this is settled law: Murdoch v. Murdoch, supra; Gissing v. Gissing, supra; Pettitt v. Pettitt, supra. The courts are looking for a common intention manifested by acts or words that property is acquired as a trustee.
If there is a contribution in money or money's worth, but absence of evidence of an agreement or common intention as to the quantum of the interest, doubts may arise as to the extent of the share of each spouse in the property. Lord Reid, in Pettitt's case, supra, at p. 794, said that the respective shares might be determined in this manner: "... you ask what reasonable people in the shoes of the spouses would have agreed if they had directed their minds to the question of what claim the contributing spouse ought to have." This is a sensible solution and I would adopt it.
The difficulty experienced in the cases is the situation where no agreement or common intention is evidenced, and the contribution of the spouse without title can be characterized as performance of the usual duties growing out of matrimony. There are many examples of this. There is the class of case where one spouse spends week-ends or evenings making small repairs to the family home: Appleton v. Appleton, supra; Pettitt v. Pettitt, supra, or contributes money to such repairs: Re Taylor[16]. There is the case where one spouse may go out to work, making contributions to family expenses enabling the other spouse to acquire and pay for the matrimonial home: Rimmer v. Rimmer, supra; Fribance v. Fribance[17]; or the case where one spouse may work in a family business and receive no wage or title to property: Re Cummins[18]. There is also the case where a busi­ness may be a joint effort, such as a farm and, though title may issue to one spouse only, the business only succeeds through the efforts of both husband and wife: Trueman v. Trueman[19]; Mur­doch v. Murdoch, supra; Fiedler v. Fiedler[20] Some of these situations may be analyzed as agreement or common intention situations. Such intention is generally presumed from a financial contribution. The doctrine of resulting trusts applies. In others a common intention is clearly lacking and cannot be presumed. The doctrine of the resulting trust then cannot apply. It is here that we must turn to the doctrine of constructive trust.
VII
The constructive trust encompasses a more uncertain amplitude than the resulting trust. Eng­lish law has long treated it as an analogous institu­tion to the express trust arising in certain definite situations such as the assumption of trustee duties by a stranger to a trust, the participation in the fraud of a trustee by a stranger, and reception and dealing with trust property by a stranger in ways inconsistent with the trust: Barnes v. Addy[21]; Soar v. Ashwell[22]. 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.
The examples mentioned above are situations where a man against his will is brought within the express trusteeship institution, but in the United States the constructive trust has never been so limited. Its amplitude oversteps the substantive trust machinery. It is a remedial mechanism.
The constructive trust amounts to a third head of obligation, quite distinct from contract and tort, in which the court subjects "a person holding title to property . . , to an equitable duty to convey it to another on the ground that he would be unjustly enriched if he were permitted to retain it"; Mur­doch v. Murdoch at p. 455, per Laskin J., citing Scott, Law of Trusts (3d), Vol. 5, at p. 3215. The constructive trust is an obligation of great elastici­ty and generality.
Where a common intention is clearly lacking and cannot be presumed, but a spouse does contribute to family life, the court has the difficult task of deciding whether there is any casual con­nection between the contribution and the disputed asset. It has to assess whether the contribution was such as enabled the spouse with title to acquire the asset in dispute. That will be a question of fact to be found in the circumstances of the particular case. If the answer is affirmat