minicounsel

COURT FILE NO.: 2858-1 DATE: 2016/09/19 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Larry Branson Applicant – and – Pamela Branson Respondent

COUNSEL: Sean Jones, for the Applicant Meredith Holmes, for the Respondent

HEARD: By written submissions

Overview

1This cost award is in respect of a Motion to Change brought by the Respondent, Pamela Branson (“Mrs. Branson”). The history of the motion is detailed in my Endorsement of July 15, 2016. Apart from my determination of the amount owing by Mrs. Branson to the Applicant (“Mr. Branson”) on the mortgage to him, Mrs. Branson’s motion was dismissed.

2The parties were invited to make written submissions to me on costs in the event they could not agree on costs. Those were received by August 26, 2016.

Positions of Parties

3In her costs submissions, Mrs. Branson states that Mr. Branson was “undeniably the successful party in this case…”

4In his submissions, Mr. Branson attached a letter from Mrs. Branson’s lawyer dated March 25, 2015 that contains an Offer to Settle. He asserts that it is not an Offer to Settle as it is not signed by Mrs. Branson as required by Rule 18(1) of the Family Law Rules, O. Reg. 114/99. Mrs. Branson does not address that argument, although her submissions were delivered after having received those of Mr. Branson. Whether or not it was an offer to settle that must be considered is irrelevant as Mrs. Branson largely accepts the amounts claimed by Mr. Branson.

5In her costs submissions Mrs. Branson does refer to her March 25, 2015 “comprehensive offer to settle” to respond to the arguments put forth by Mr. Branson that Mrs. Branson did not abandon her claim for retroactive child support until the day of the motion. Mr. Branson points out that at the start of the hearing, Mrs. Branson initially advanced the position that she wished to proceed with her motion for spousal support while reserving her right to bring a future motion for retroactive child support arrears. Mr. Branson was unwilling to proceed on that basis. Mrs. Branson was then allowed time to consider her position. When the hearing resumed, Mrs. Branson confirmed that she was abandoning her right to bring such a motion and that her motion was only for spousal support.

6Mrs. Branson acknowledges that in 2009, when her motion was initiated, she was entitled to claim retroactive child support but by 2016, that claim could no longer be pursued as the child was no longer entitled to support. In his costs submissions, Mr. Branson asserts that this claim has been abandoned and that he is entitled to his costs of that claim. Mr. Branson then acknowledges that it is impossible to tease out the time his counsel spent on the issue of retroactive child support. Again, as Mrs. Branson takes no issue with the time spent or the hourly rates charged by Mr. Branson, this issue does not need to be decided.

Amount Sought by Mr. Branson

7At Tab 11 of his Costs Submissions Mr. Branson provides a breakdown of the $32,777.34 in costs he is seeking as follows:

(i) Partial recovery on fees to June 2, 2016*, $21,719.75 @ 66%: $14,335.03

the date of his Offer to Settle

(ii) Full recovery on fees after June 2, 2016 $11,200 @ 80% $ 8,960.00

(iii) HST on those fees ($23, 295.03 x 13%): $ 3,028.35

(iv) Disbursements and HST $231.96 + $4,972* (incl. HST) $ 5,203.96 *Collins Barrow Report

(v) Preparation of costs submissions fees, disbursements, and HST $1,250.00

TOTAL: $32,777.34

Factors to be Considered in Awarding Costs

8In their costs submissions, both parties address the factors to be considered when fixing costs. These are set out in Rule 24 of the Family Law Rules, O. Reg. 114/99, and include that the successful party is presumed to be entitled to costs, the reasonableness of the behaviour of each party and any offer to settle, any acts of bad faith by any party, the importance, complexity or difficulty of the matter, the scale of costs, hourly rates and time spent, and the reasonable expectations of the losing party.

9Mrs. Branson takes issue with two things only: payment of the Collins Barrow Report and the partial indemnity rate to be used. Mrs. Branson otherwise accepts that Mr. Branson’s fees and disbursements are accurate and legitimate. For that reason this Costs Decision does not set out a detailed review of the Rule 24 factors. However, I did consider the factors and, as did Mrs. Branson, I also concluded that Mr. Branson’s fees and disbursements are reasonable and within Mrs. Branson’s reasonable expectations of what she might have to pay if she was unsuccessful.

10This litigation was initiated in 2009. That it did not proceed in a timely or cost-effective way was caused, in large part, by the failure of Mrs. Branson to pursue her claim. The delay that resulted added to the litigation costs, such as the need for repeated updating of financial disclosure. That conduct must be considered in determining costs. Again, the amount sought by Mr. Branson is reasonable in the circumstances and, due to a bookkeeping oversight by his lawyer, the hourly rates claimed by Mr. Branson are even less than might reasonably be charged by a lawyer with 36 years of experience.

11Paragraph 5 of Mrs. Branson’s costs submissions states, in part: “Mrs. Branson accepts all of Mr. Branson’s disbursements and fees as accurate and legitimate…” save for two issues:

(1) Mrs. Branson submits that the partial indemnity rate should be calculated by a factor of 60% rather than the 66% claimed by Mr. Branson;

(2) Mrs. Branson submits that the cost of the Collins Barrow Report should be split between the parties as it was a joint retainer and was obtained so that Mr. Branson could establish his income.

Partial Indemnity Rate

12Mrs. Branson relies on the oft-cited decision of Justice Newbould in Stetson Oil & Gas Ltd. v. Stifel Nicolaus Canada Inc., 2013 ONSC 5213 for her submission that the Court should use a partial indemnity rate of 60% of the reasonable fees.

13Were I to apply the Stetson 60% rate to the pre-June 2, 2016 fees claimed by Mr. Branson ($21,719.75 x 60%) the fees, before HST, would be reduced by $1,303.18 to $13,031.85. HST would be reduced by $169.41 for a total reduction in pre-June 2, 2016 fees and HST of $1,472.59.

14Mrs. Branson acknowledges that Stetson uses a multiplier of 90% for full indemnity costs but accepts the lower rate of 80% sought by Mr. Branson.

15In order to be consistent in applying Stetson, it would be appropriate to use the Stetson full indemnity rate of 90% rather than the 80% used by Mr. Branson in calculating his post-June 2, 2016 fees. Applying the higher percentage would increase Mr. Branson’s fees by $1,120.00 ($11,200.00 x 90% = $10,080 - $8,960.00 = $1,120.00). There would be a corresponding increase in HST of $145.60 ($1,120 x 13%). In total, using the 90% rate, the amount of Mr. Branson’s post-June 2, 2016 fees and HST would increase by $1,265.60.

16Applying the Stetson percentages of 60% and 90% result in a net reduction of $206.99 in the costs claimed by Mr. Branson. The difference is minimal and in all the circumstances, I conclude that the amount sought by Mr. Branson is reasonable and proportionate and should be awarded.

17With respect to the Collins Barrow Report, Mrs. Branson argues that this expense should be split between the parties as it was incumbent upon Mr. Branson to provide his income information and the Collins Barrow Report was commissioned by Mr. and Mrs. Branson jointly. The Report was intended to provide an accurate statement of Mr. Branson’s income available for support for the years 2007 to 2011.

18I am persuaded by the arguments advanced by Mr. Branson that the amount paid for the Collins Barrow Report was much lower than the $15,000.00 fee Mrs. Branson stated she would have had to pay for her own expert report (Affidavit April 8, 2016, paragraphs 20 -21). Instead of obtaining her own report Mrs. Branson relied on the Collins Barrow Report in support of her motion.

19Mr. Branson was the successful party on the Motion and I conclude that there is no reason why he should not be entitled to recover 100% of the cost of the Collins Barrow Report, prepared for the purposes of the litigation.

Disposition

20For the reasons set out above, I order the Respondent, Pamela Branson, to pay the costs of the Applicant, Larry Branson, in the amount of $32,777.34 inclusive of disbursements and HST and inclusive of his claim for $1,250.00 for costs related to the preparation of his Costs Submissions.

Sheard, J.

Released: September 19, 2016

Branson v Branson, 2016 ONSC 5808

Case Summary

Overview

Positions of Parties