



COURT
OF APPEAL FOR BRITISH COLUMBIA




Citation:



Kerr v. Baranow,









2010 BCCA 32




Date: 20100121

Docket:
CA035724

Between:

Margaret Patricia Kerr

Respondent

(
Plaintiff
)

And

Nelson Dennis Baranow

Appellant

(
Defendant
)






Before:



The Honourable Madam Justice Levine





The Honourable Mr. Justice Tysoe





The Honourable Madam Justice D. Smith




Supplementary
Reasons to: Court of Appeal for British Columbia, March 13, 2009
(
Kerr v. Baranow
, 2009 BCCA 111)




Counsel for the Appellant:



S.
  Label





Counsel for the Respondent:



A.
  Petronio





Place and Date of Hearing:



Vancouver,
  British Columbia





January 8, 2009





Place and Date of Judgment:



Vancouver
, British Columbia





March
  13, 2009







Written Submissions received:



July
  17 and July 29, 2009







Date of Supplementary Judgment:



January
  21, 2010









Supplementary Reasons by
:





The Honourable Madam Justice D. Smith





Concurred in by:





The Honourable Madam Justice Levine
The Honourable Mr. Justice Tysoe






Supplementary
Reasons for Judgment of the Honourable Madam Justice D. Smith:

[1]

The appellant seeks an order for costs of the
appeal and, as a result of its disposition, an order for costs in the court
below.

[2]

The action was commenced by the respondent following
the break-down of the parties long-term common law relationship. The
respondent sought a declaration of a resulting trust in real property owned by
the appellant, or in the alternative a monetary award for unjust enrichment as a
result of her direct and indirect contributions during the relationship. The
respondent also sought an award of spousal support.

[3]

The appellant opposed all of the respondents claims
and counterclaimed for a monetary award for unjust enrichment, or alternatively
a declaration of trust in the assets held by the respondent, as a result of his
direct and indirect contributions during the relationship.

[4]

The trial judge granted the respondent a
declaration of resulting trust in a one-third interest in the real property
owned by the appellant and awarded her a monetary sum for the value of that
interest. He also awarded the respondent indefinite monthly spousal support,
retroactive to the date upon which the action was commenced, even though the
respondent had not requested retroactive spousal support to that date and had
made no application for interim spousal support.

[5]

The appellants counterclaim was not addressed
in the entered order from the trial court.

[6]

On appeal this Court: (i) dismissed the
respondents application to adduce fresh evidence; (ii) allowed the appeal from
the declaration of resulting trust, or in the alternative constructive trust, and
the attendant monetary award for the respondents trust interest; (iii)
remitted the appellants claim for unjust enrichment back to the lower court
for determination; (iv) dismissed the appellants appeal from the award of spousal
support but allowed the appeal from the retroactive aspect of the award. This
last order was based on a ground of appeal that was framed in the alternative;
namely, if the entitlement and amount of the spousal support award was not in
error, then in the alternative the retroactive aspect of the award was in
error.

[7]

The general rule is that costs follow the event.
Section 23 of the
Court of Appeal Act,
R.S.B.C. 1996, c. 77 (the 
Act
)
provides:

Unless the court
or a justice otherwise orders, the party who is successful on an appeal is
entitled to costs of the appeal including the costs of all applications made in
the appeal.

[8]

In my view, the appellant was substantially successful
in the appeal and therefore is entitled to his costs pursuant to s. 23 of the
Act.

[9]

The appellant also seeks an order for costs in
the court below. Given the disposition of the appeal, I am not persuaded the
appellant can be said to have achieved the same degree of success on the claims
before the trial court. While he has succeeded in having the respondents trust
claims dismissed, the respondent succeeded on her claim for spousal support,
which the appellant opposed at trial and which was upheld on appeal.

[10]

In view of the parties divided success on their
respective claims advanced at the trial of the action, I would order that each
bear their own costs in the court below.

The Honourable Madam Justice D. Smith

I AGREE:

The Honourable
Madam Justice Levine

I AGREE:

The
Honourable Mr. Justice Tysoe


