Margaret Patricia Kerr v. Nelson Dennis Baranow

(British Columbia) (Civil) (By Leave)




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Family law - Common law spouses - Property - Resulting and constructive trusts - Unjust enrichment - Contributions of spouses - Support - Retroactive support - Disabled spouse - Spouses separating after 26 years of cohabitation - Whether the Court of Appeal erred in the exercise of its jurisdiction to review the trial judge’s findings contrary to Housen v. Nikolaisen, [2002] 2 S.C.R. 235 - Whether the Court of Appeal erred in its rejection of the Appellant’s claim based on unjust enrichment - Whether the Court of Appeal erred in its rejection of the Appellant’s claim based on the doctrine of resulting trust - Whether the Court of Appeal erred in holding that the Appellant was not entitled to spousal support prior to the date of the commencement of the trial.

The parties separated in 2006 after a 26-year common law relationship. When they began living together in 1981, Kerr transferred her home and car to Baranow, who paid off associated debts. They resided in that house for four years, renting out the home that Baranow had owned since 1978. In 1985, he sold Kerr’s former home for a loss and thereafter, the parties lived in Baranow’s house, which they had completely remodelled. While they shared financial obligations throughout their relationship, they kept their financial affairs separate from one another. The parties enjoyed an active lifestyle and both worked full-time until 1991 when Kerr suffered a massive stroke that left her with partial paralysis and unable to work. She continued to perform the household chores and to pay for household expenses, despite the continued deterioration in her health. In the last year and a half of their cohabitation, Kerr was dependant upon Baranow for a substantial amount of her personal care. She did use some of her disability income to pay for the services of a caregiver. Her average annual disability income was $34,000, while Baranow earned $70,520. After Kerr went to live in an extended care facility, she brought an action claiming spousal support and a division of property on the basis of resulting trust and unjust enrichment. At the time of separation, Baranow’s assets significantly exceeded Kerr’s assets.

Lower Court Rulings

December 21, 2007
Supreme Court of British Columbia

E063202, 2007 BCSC 1863
Applicant awarded one third interest in property owned by Respondent or a monetary award in the amount of $315,000 on the basis of resulting trust or unjust enrichment. Respondent ordered to pay Applicant spousal support of $1,739 retroactive to the date
March 13, 2009
Court of Appeal for British Columbia (Vancouver)

CA035724, 2009 BCCA 111
Respondent’s appeal from award of $315,000 allowed. Appeal from retroactive spousal award allowed, with the commencement date to be from the date of trial. Respondent’s appeal from spousal support award dismissed