Superior Court of Justice – Ontario

Court File No.: FC-18-1371-1
Date: 2025/05/19

RE: Janet Rowley, Moving Party
AND: Matthew Bowick, Responding Party

Before: Jensen
Counsel:

Annemarie Roodal, Counsel for the Moving Party
Richard Bowles, Counsel for the Responding Party

Heard: In writing

Endorsement

Introduction

[1] This is a decision on costs following a motion to change that was heard on November 21, 2024. I rendered my decision on the motion on December 16, 2024. The written costs submissions were filed in April 2025.

[2] The motion dealt with the Applicant’s request (Ms. Rowley) to have her daughter M.B. move to Victoria, British Columbia, with her. It also dealt with the parenting time that would ensue whether the move was ordered or not. Finally, the costs of travelling for parenting time were addressed in the motion. The Respondent (Mr. Bowick) resisted the motion, arguing that it was not in the child’s best interests to move to Victoria.

[3] The parties argued the motion as though it was a request for a final order, which is what I granted. I made the following final order:

Parenting Order

The child of the relationship, M.B, D.O.B. April 13, 2013, shall:

a. Reside with her father from 9:00 a.m., 14 days before the first day of school to 9:00 a.m. the following June 30. i.e., she will reside with him for the final two weeks of the OCDSB summer holidays and the academic year.
b. Reside with her mother for all but the last two full weeks of the OCDSB summer holidays.
c. Each Christmas break she will reside with her mother for either the first half or second half of the holiday. For 2024, the mother's week shall include Christmas day. The following year the father's week shall include Christmas Day and they will alternate thereafter. The holiday period will start after school on the last day of school before the break and end at 7:00 p.m. the night before her first day back at school. If there is an uneven number of days in the holiday period, the transition will take place at 12:00 p.m. on the midpoint day. If there is an even number of days in the holiday period, the transition will take place at 9:00 a.m. the morning after half the holiday period has elapsed.
d. Alternate the school spring break. That break is from Friday after school to the Sunday at 12:00 p.m. immediately preceding M.B.'s return to school. M.B. will spend Spring Break 2025 with her mother, 2026 with her father and so on thereafter.
If she chooses, during the school year, the Mother may also have M.B. with her in Ottawa one weekend each month (Friday at 4:00 p.m. until Sunday at 7:00 p.m.), save for the months of December and March when M.B. is with her for spring break. The Mother shall advise the Father by no later than July 1 of each year what weekends, if any, she will have M.B. with her in Ottawa.
Both parents shall ensure that M.B. has access to the proper devices to videocall with the non-residential parent twice weekly or as M.B. may choose. M.B. shall directly notify the parent if she does not wish to speak at any given time.
The mother shall bear all the costs of her spending parenting time with M.B., including all costs of M.B.'s travel. However, the Father will pay for the airfare for the Mother to travel to Ottawa for six (6) monthly visits in 2025.

[4] Mr. Bowick was successful in having the motion dismissed. He is therefore, presumptively entitled to his costs: Rule 24(1) of the Family Law Rules (FLRs).

[5] While a successful party in a family law case is presumptively entitled to costs, an award of costs is subject to the factors listed in r. 24(11), the directions set out under r. 24(7) (unreasonable conduct), r. 24(10) (bad faith), r. 18(14) (offers to settle), and the reasonableness of the costs sought by the successful party. [1]

[6] I find that Mr. Bowick’s conduct in this litigation was reasonable. He made two offers to settle the matter, which I will discuss later. I find nothing in Mr. Bowick’s conduct of the litigation in the present case that would disentitle him to costs.

[7] Mr. Bowick seeks costs on a full or close to full indemnity basis, relying on two offers to settle, one made on April 19, 2023, and the second made on September 2, 2023. Mr. Bowick acknowledges that the first offer was more generic than the second one.

[8] Ms. Rowley argues that an order for costs on a full indemnity basis is inappropriate. She argues that she is unable to pay the costs that are requested by Mr. Bowick, which amount to $30,054.33. She further argues that such an award would have a detrimental impact on the child, M.B., because Ms. Rowley would be unable to afford the costs of travelling to see M.B. and to meet her monthly expenses.

Analysis

[9] Costs awards are discretionary. The two important principles in exercising discretion are reasonableness and proportionality: Beaver v. Hill, 2018 ONCA 840.

[10] Subrule 24(12) requires the court to consider the following factors when setting the amount of costs:

(a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues:
(i) each party’s behaviour,
(ii) the time spent by each party,
(iii) any written offers to settle, including offers that do not meet the requirements of rule 18,
(iv) any legal fees, including the number of lawyers and their rates,
(v) any expert witness fees, including the number of experts and their rates,
(vi) any other expenses properly paid or payable; and
(b) any other relevant matter.

[11] To trigger full recovery costs a party must do as well or better than all the terms of any offer, or a severable section of an offer. [2]

[12] The court is not required to examine each term of the offer as compared to the terms of the order and weigh with microscopic precision the equivalence of the terms. What is required is a general assessment of the overall comparability of the offer as contrasted with the order. [3]

[13] Mr. Bowick’s offer of April 19, 2023 was not much of an offer. It was a demand that the motion be dismissed without costs.

[14] Mr. Bowick’s second offer, which was served on September 2, 2023, was a more reasonable offer. It included terms that were very similar to the terms I ordered in the December 2024 decision. There are two differences: (1) the offer includes a term about visits with Ms. Rowley’s parents, which is no longer relevant given their likely move to Victoria; and (2) Mr. Bowick offered to forego child support in exchange for Ms. Rowley taking responsibility for all travel costs to visit M.B. on a monthly basis.

[15] The issue of child support was not resolved at the motion and therefore, it is still possible for Mr. Bowick to claim child support. In that sense, he obtained a more favourable result on the motion than the offer. While this result could mean that Mr. Bowick is entitled to costs on a full recovery basis after the date of the offer to settle, I must also evaluate the reasonable expectations that Ms. Rowley would have had as the losing party and the proportionality of the costs to the results achieved: Da Silva v. Quevedo, 2025 ONSC 2012, para 22.

[16] As noted above, Ms. Rowley states that she is unable to pay a costs award of $30,000. Inability to pay is a factor that may be considered in determining the amount of costs to be paid. [4] However, as Justice Pazaratz stated in Da Silva, para 46:
“Difficult financial circumstances are a factor to be considered. But they do not always justify depriving a successful party of costs, or reducing the amount of costs.”

[17] Ability to pay is less relevant where the unsuccessful party has acted unreasonably. [5] That is not the case here. Ms. Rowley acted reasonably and responsibly. The OCL Report was somewhat equivocal with respect to whether it was in M.B.’s best interests to move to Victoria, with the child indicating a slight preference to go with her mother. Therefore, I find that Ms. Rowley was acting reasonably in this matter. Her ability to pay is a factor that I have taken into account, along with the other factors in r. 24(12).

[18] Ms. Rowley’s main source of income is CPP disability benefits of $1084.50 per month and income replacement benefits of $1600 per month, with her monthly income being $2684.50. She will no longer be receiving the child tax benefit for M.B. Her expenses currently exceed her income, and she uses her credit card to cover the shortfall.

[19] I have reviewed the Bill of Costs submitted by Mr. Bowick’s counsel. I find that the rates charged and the delegation of work to junior lawyers to be appropriate. Ms. Rowley’s counsel argues that the file was over-worked. She takes issue with time spent researching summary judgment options and reviewing the Voice of the Child Report. I agree that the time spent preparing in advance of the motion from August 30, 2023 to November 20, 2024 seems quite high and weighted very heavily towards the higher fee earner. However, I am mindful that determining costs requires more than a simple mathematical totaling of how much the successful party paid their lawyer. [6]

[20] This issue was extremely important for both parties. The location of the child in a country as large as Canada is bound to have a significant impact on the relationship between the child and her parents.

[21] In terms of the reasonable expectations of the parties, the courts often look to the losing party’s Bill of Costs as one measure of the losing party’s expectations of the costs. Ms. Rowley’s costs were $8,136.00 at a full indemnity rate. That strikes me as low, given the importance of the issues to the parties.

[22] In my view, $15,000 is reasonable and proportionate to the outcome based on the following:

(i) Mr. Bowick was entirely successful on the motion.
(ii) Mr. Bowick provided an offer on September 2, 2023, which was better than the result he obtained on the motion.
(iii) Both parties conducted the litigation in a reasonable manner.
(iv) Ms. Rowley’s financial means are more limited than those of Mr. Bowick. However, as noted by Justice Pazaratz in Da Silva, para 48:

People who can’t afford to pay costs if they lose their case should be very careful about what claims they pursue.
(v) The issue was extremely important to both parties. It merited significant effort on the part of both parties. However, the amount of effort and resulting costs appear higher than one would reasonably expect in terms of Mr. Bowick’s Bill of Costs and lower than one would reasonably expect, based on Ms. Rowley’s Bill of Costs.

[23] Ms. Rowley is therefore required to pay costs in the amount of $15,000, all inclusive, to Mr. Bowick’s counsel within 30 days or such other reasonable time period as the parties agree upon.

Jensen
Date: May 19, 2025