CITATION: Gillespie v. Gillespie, 2025 ONSC 2582

DIVISIONAL COURT FILE NO.:1604/24

DATE:20250514

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: RICHARD JAMES GILLESPIE, Appellant

AND:

JORDAN MARY ELIZABETH EALDAMA GILLESPIE, Respondent

BEFORE: MacLeod R.S.J., Lococo and McGee JJ.

COUNSEL: Kevin Caspersz and Lisa Chegini, for the Appellant

Jordan Gillespie, Respondent, self-represented

HEARD at Sudbury: April 16, 2025, by videoconference

ENDORSEMENT

McGee J.

[1] This is an appeal from the temporary Order of Leef J. dated June 17, 2024 on an Urgent Parenting Motion heard before a Case Conference in a family law proceeding (the “Order”.)

[2] The Order dismissed the appellant father’s Motion for the immediate return of the parties’ three-year-old son to his care in Ajax, in circumstances in which the child had not seen his father for nine months. In the alternative to an immediate return before a Case Conference, the Order established a stepped-up parenting schedule and required the respondent mother, who in September of 2023 had moved in with her family in Sudbury, to be responsible for the majority of the transportation. The father also appeals from the related costs decision dated September 23, 2024.

[3] After the appellant’s counsels made submissions at the oral hearing of this appeal, the court advised the parties that it did not need to hear from the mother. It then dismissed the appeal with reasons to follow. These are the promised reasons.

Basic Facts of the Case

[4] The parties were married on May 9, 2020 and their son, K. was born on August 10, 2021. Mr. Gillespie had two children from a prior relationship who were in his care on alternate weeks. Ms. Gillespie often cared for all three children within their blended household because the father was the primary income earner.

[5] The parties separated on April 14, 2023 at the father’s insistence, but continued to reside together in their jointly rented bungalow located in Ajax, Ontario. Tensions escalated over the summer as the father demanded that the mother vacate the home.

[6] On September 14, 2023, the mother brought K. to his father’s employment to say goodbye on her way to Sudbury, after emailing him with her plan to spend some time with her family. She returned to their Ajax home on September 23, 2024 and discovered that the locks had been changed. She contacted a locksmith to enter the home and to retrieve her and K.’s personal belongings. She then returned to her family in the greater Sudbury area, with whom she and K. continue to reside.

[7] Throughout the fall of 2023 the father did not object to K. residing with his mother and his extended maternal family in Sudbury. He took no steps to have in-person or virtual parenting time with K. despite the mother’s direct efforts to facilitate father-son contact.

[8] Each parent retained counsel. On December 21, 2023, the mother’s counsel served a Notice of Relocation pursuant to section 16.9 of the Divorce Act R.S.C., 1985, c. 3, to which the father’s counsel responded with a written objection the following day.

[9] Throughout, the mother lived with her family in Sudbury, first in her family’s residence at 1944 Springdale Crescent and later in Hanmer when the family home sold. At all times the father knew where the mother was living. He chose not to travel to the Sudbury area to see K. or to engage in virtual or telephone parenting time.

[10] Instead, on January 26, 2024 the father brought an urgent Motion without notice for K. to be immediately returned to his care in Ajax, without issuing an Application, preparing a Form 35.1 Parenting Affidavit, or seeking an urgent Case Conference. He gave no notice whatsoever of his Motion, despite the mother having counsel.

[11] Justice Fryer dismissed the Motion in chambers, finding that it did not have the requisite level of urgency necessary to a Motion without notice prior to a Case Conference. She required the father to issue an Application, to serve the mother and thereafter, to schedule an Early Triage Conference (“ETC.”).

[12] The ETC was heard by Justice Fryer on April 17, 2024. Settlement discussions took the day and counsel advised that a resolution had been achieved. Justice Fryer provided for the Minutes of Settlement to be placed before her the next day and adjourned the ETC to be spoken to on June 26, 2024. She also endorsed that if the matter did not resolve, the father was permitted to file a Request for an Urgent Motion. To accommodate the return of the ETC, the Motion was not to be heard until after July 10, 2024.

[13] On April 19, 2024, the father filed an urgent Motion Request Form. On April 22, 2024, Justice Fryer endorsed that an early Motion date could be set within the next 30-45 days, noting the background information in the April 17th endorsement. Paragraph 3 of that endorsement references the local area Practise Direction that “all regular Motions are to be heard in writing unless the Motion Judge determines otherwise…[p]arties or counsel are not entitled to make oral submissions unless the judge permits.”

[14] The father obtained the date of June 13, 2024 and served a Notice of Motion seeking 15 substantive heads of relief inclusive of K. being immediately returned to his sole care in Ajax followed by a two-week period of no contact with his mother, restraining Orders, CAS records, Orders governing K.’s enrolment in preschool and police enforcement.

[15] When the Urgent Motion came before the Motion Judge at 9:30 a.m. on June 13, 2024, the Case Center file was incomplete. The Motion Judge could have adjourned the Motion, but instead, she made preliminary, general comments appertain to any urgent parenting Motion in circumstances in which a young child had not seen a parent for a lengthy period. She set the Motion down to the afternoon and read the missing materials over her lunch hour. The hearing of the urgent Motion took the afternoon.

[16] The Motion Judge released her decision on June 17, 2024. She dismissed the relief sought by the father in his Urgent Motion for K. to be placed into his immediate primary care in Ajax; finding that it was not in K.’s best interests to be removed from his primary caregiver on a temporary basis pending trial. The Motions Judge further dismissed the balance of claims for which leave had not been granted to be heard prior to a Case Conference.

[17] In her comprehensive reasons, the Motion Judge considered the bests interests factors and provided for a stepped-up, weekend parenting time schedule to restart K.’s parenting schedule with his father. The mother was responsible for almost all of the transportation.

[18] At the return of the ETC on June 26, 2024, Justice Fryer made a temporary Order for table child support commencing July 1, 2024. To expeditiously move the matter forward, she set the next date as a Settlement Conference rather than a Case Conference.

[19] On September 23, 2024, the mother was granted $10,000 in costs within a written decision that fully set out the purposes and principles of a costs award.

[20] The Settlement Conference date was adjourned because the father did not file any materials. The Settlement Conference is now scheduled for August 5, 2025.

Issues On Appeal

[21] The father’s amended Notice of Appeal asks that both the June 17, 2024 Order and the subsequent Costs Order of September 23, 2024 be set aside, and that the urgent Motion be returned for a new hearing, or alternatively, that this Court determine K.’s residence, his parenting schedule, transportation between his parents’ homes; and terms preventing further relocation, preschool registration and the release of CAS records pending Trial.

[22] The father also asks that the June 26, 2024 Order for child support be set aside. This court cannot address the child support order because the father has not sought leave to appeal the Order of June 26, 2024.

[23] The grounds of appeal can be summarized as follows:

1. That the Motions Judge was biased.

2. That the Motion Judge erred by creating a novel basis for de facto interim relocation in contravention of the Divorce Act.

3. That the Motion Judge erred by not ordering the immediate return of the child as a remedy to the respondent’s failure to comply with the notice provisions set out in s. 16.9 of the Divorce Act.

Standard of Review

[24] The appellate standard of review applies to this appeal: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. Questions of law are reviewed for correctness, questions of fact are reviewed for a palpable and overriding error, and questions of mixed fact and law are reviewed on the deferential standard of palpable and overriding error, except for “extricable questions of law” for which the correctness standard applies.

[25] Considerable deference is owed to a first instance decision on support: Hickey v. Hickey, [1999] 2 S.C.R. 518. As set out in para. 12 of Hickey, the discretion involved in making a support Order is best exercised by the judge who has heard the parties directly. Orders should not be overturned unless the reasons disclose an error in principle, a significant misapprehension of the evidence, or unless the award is clearly wrong.

Analysis

The Motions Judge Was Not Biased

[26] The father argues that the Motion Judge’s statements prior to, and during the hearing of the Motion displayed a predisposition against his position, that when viewed in relation to the result, gives rise to an apprehension of bias. I disagree. Prior to reading the materials, the Motion Judge made preliminary remarks that are relevant to any proceeding in which a parent asks to reverse the primary care of a young child with whom he has had no contact for nine months. The Motion Judge asked the parties to have settlement discussions, to think seriously about a parenting schedule that would restart the father-son relationship, and to return before her in the afternoon for full argument.

[27] The hearing of the Motion took the afternoon. The Motion Judge pressed her view, then informed by the written materials, that it was in K.’s best interests to have a regular parenting schedule with his father pending a final determination of the issues. She did not engage with any additional issues raised by the father that were not properly before her, or that distracted her from the urgent issues to be determined before a Case Conference.

[28] The test to establish a reasonable apprehension of bias is whether a reasonable person properly informed would apprehend that there was conscious or unconscious bias on the part of the judge: see Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259, at para. 66. As set out in Marchand (Litigation Guardian of) v. Public General Hospital Society of Chatham (2000), 51 O.R. (3d) 97 (C.A.), at para 131, the threshold for a finding of actual or apprehended bias is high because a finding of bias calls into question not just the personal integrity of the judge but the integrity of the entire administration of justice. The strong presumption of judicial impartiality is not easily displaced, and comments or conduct during the hearing should be considered within the context of the entire proceedings: Cojocaru (Guardian ad litem of) v. British Columbia Women’s Hospital and Health Center, 2013 SCC 30, [2013] 2 S.C.R. 357.

[29] The presumption of judicial impartiality was not displaced in these circumstances. In the absence of any contact with his father for over the prior nine months, it was open to the Motions Judge to find that it was not in K.’s best interests to be taken from his primary caregiver. The same relief had already been rejected on January 26, 2024 as not being urgent. Rule 14(4.1) of the Family Law Rules, O. Reg. 114/99 prescribes that no Motion may be heard before a Case Conference unless the court is of the opinion that there is a situation of urgency or hardship, or that a Case Conference is not required for some other reason in the interest of justice.

[30] The Motions Judge did not err in law when she assessed the best interest factors and found that it was in K.’s best interests to restart the father’s parenting time prior to a final determination. Neither did she err in her attempts to move the matter forward expeditiously including a reference to the issue of child support. The Motions Judge took a holistic approach to the litigation and any comments that fell outside the narrow scope of the Motion did not display bias in the context of the entire proceeding.

The Motions Judge Did Not Create a De Facto Interim Relocation

[31] Appellant’s counsel fashions the June 17, 2024 decision as an error in law because the Motions Judge created a de facto interim relocation in contravention of the Divorce Act. He expands on this theme with several additional arguments, each framed as a separate ground of appeal: that delay should not sanction a relocation, that a surreptitious relocation and/or the withholding of a child should not create a new status quo, and that an urgent Motion for relocation should not be a “band aid” solution. He asks that the decision be set aside and returned for a new hearing on the urgent Motion.

[32] As stated by this Court in Lokhandwala v. Khan, 2019 ONSC 6346 (Div. Ct.), at para. 5, “[i]n family law, temporary support Orders are designed to establish or maintain a reasonable state of affairs pending trial. Unless expressly stated otherwise, temporary Orders are without prejudice to adjustment by the trial judge. Interlocutory appeals in family law matters are costly, time-consuming, and tend to impair the reasonable and efficient course of those proceedings.”

[33] The issue before the Motion Judge was not K.’s relocation to Sudbury pursuant to s. 16 of the Divorce Act but instead was K.’s residence and parenting schedule prior to a Case Conference. Had the father first proceeded to a Case Conference, the issue would have been K.’s residence and parenting schedule pending trial.

[34] The father argues that any result that permits K. to remain in his mother’s care, such as a dismissal of his Motion, is highly prejudicial to his case because it creates a status quo that disadvantages him at trial.

[35] A status quo merely refers to the existing situation before a dispute or legal matter arose. In parenting disputes, a status quo is not a substantive advantage except insofar as it informs a child’s best interests. Courts prefer to maintain a child’s caregiving routines until such time as there is a final determination, unless and until it is no longer in a child’s best interests to do so.

[36] Delay on the part of either the moving parent or the left behind parent does not sanction a child’s relocation. At the same time, the exiting situation is a factor in assessing a child’s best interests in the present moment, which must be analyzed from the child's perspective and not from the perspective of either parent. A parent’s preferences and rights are not relevant except to the extent that they are necessary to identify the best interests of the child: see Gordon v. Goertz, [1996] 2 S.C.R. 27; Young v. Young, [1993] 4 S.C.R. 3.

[37] This was not a surreptitious removal of a child upon which the father acted with dispatch, as was the case before me in Bansal v Kelly, 2022 ONSC 7049 cited by appellant’s counsel in support of their position at the Motion and now on appeal. Here, the father locked the mother out of their jointly leased residence while K. was in her care, then negotiated through counsel for the next fours months before bringing a Motion without notice. Negotiations continued and throughout, the father took no steps to spend time with K. in person or virtually. Any real or perceived prejudice to the father’s claim for primary residence results from the father’s own actions during this period and not from the outcome of the urgent Motion.

Return of A Child Is Not a Remedy for a Failure to Comply

[38] Appellant’s counsel posits that the best interests of the child factors set out at s. 16.92(1) of the Divorce Act are not applicable to a court’s analysis if the relocating parent has failed to obtain authorization for the move. He then advances his position with a view that a moving parent’s failure to obtain authorization can only be remedied by the immediate return of the child irrespective of any consideration of the child’s best interests.

[39] The 2021 amendments to the Divorce Act introduced provisions that require a parent who has parenting time or decision-making responsibility in respect of a child, and who intends to undertake a relocation of that child to notify, at least 60 days in advance, any other person who has parenting time, decision making or contact. The purposes of this provision are to discourage self-help, to create an orderly process, to encourage negotiation and to allow a parent to relocate without court approval in cases in which there is no objection.

[40] The Supreme Court of Canada in Barendregt v Grebiunas, 2022 SCC 22, 469 D.L.R. (4th) confirmed that the amendments to the Divorce Act import the foundational principles for relocations cases from the tests set out in Gordon v Goertz. A relocation at first instance will differ in approach from a variation application, but the crucial question remains: “is the relocation in the best interests of the child, having regard to the child's physical, emotional and psychological safety, security and well-being?”

[41] The inquiry is highly fact-specific and discretionary: see Barendregt, at paras. 115, 152. In no manner can the Divorce Act be read to require the return of a child as a remedy for the failure to give 60 days’ notice of a move, irrespective of a child’s best interests. Pursuant to s. 16.96(3), a court may modify the requirements for notice, or order that they do not apply, if the court is of the opinion that it is appropriate to do so, such as when there is a risk of family violence. As set out in S.T. v. A.T., 2023 BCSC 875, at para 129, citing K.P. v S.K., 2021 BCSC 1426, at para. 126: “non-compliance by a relocating parent within the Divorce Act relocation provisions may not in itself be necessarily dispositive against the request for relocation, if the relocation is otherwise in the best interests of the child.”

[42] At the same time, a unilateral move without notice is an important factor for the court to consider at Trial, and when setting the temporary parenting plan prior to Trial, because a parent who moves without notice may be a parent who holds a disregard of the law and/or a child’s need for predictability and stability.

[43] Here, the mother served a Notice of Relocation on December 21, 2023 after retaining counsel. The father formally opposed the relocation and the issue of K.’s primary residence will be determined at trial. In the interim, the Motions Judge did not err in law when she found that it was not in K.’s best interests to be removed from his primary caregiver pending a final determination. Neither was it an error in law for her to give effect to K.’s best interests by ordering a stepped-up parenting schedule for which the mother bore responsibility for transportation.

[44] Section 16 of the Divorce Act requires the Court to consider at all times, all factors related to the circumstances of the child, which may include the child's views and preferences, the history of caregiving, any incidents of family violence, or a child's cultural, linguistic, religious, and spiritual upbringing and heritage. A court must also consider each parent's willingness to support the development and maintenance of the child's relationship with the other parent and shall give effect to the principle that a child should have as much time with each parent, as is consistent with the best interests of the child.

[45] The Motions Judge engaged with these complex and discretionary factors as set out in s. 16 of the Divorce Act and gave well supported reasons for her child-focussed decision.

Disposition

[46] The appeal of the June 17, 2024 decision is dismissed.

[47] The appeal of the associated Costs Order dated September 23, 2024 in the amount of $10,000 is also dismissed. Costs awards are afforded a high level of deference and having reviewed the actual costs incurred by the appellate on the June 14, 2025 Motion: $25,000; it would have been within his reasonable expectation that the successful party would have incurred a similar range of legal fees and disbursements in defending the Motion.

Costs

[48] Costs on the leave for appeal were reserved to the panel hearing of this appeal.

[49] The appellate seeks costs of $47,485, pointing to his success in obtaining leave. He asks that he be granted his costs irrespective of the outcome of the appeal on the basis that costs ought to be determined at each step of the proceeding pursuant to r. 24(1) of the Family Law Rules.

[50] The respondent does not seek her costs of the appeal because she is self represented, but she does asks for costs of $29,569.84, being the sum of the Bill of Costs prepared by her off-record counsel in responding to the Motion for leave to appeal.

[51] This Court’s approach to determining costs for leave to appeal is found at para. 5 of 2265535 Ontario Inc. v. Vijayant Sood, 2017 ONSC 4738 (Div. Ct.), which states:

The issue of broader application is the question of the normal expectation for costs arising out of a motion for leave to appeal under this new process. It may provide some guidance to the profession to know that we consider the normal award of costs on a motion for leave to appeal will be in the range of $5,000 (inclusive of disbursements and HST). By providing that guidance, we do not mean to suggest that there will never be instances where the costs for a motion for leave to appeal will be larger or smaller than that amount. The particular circumstances of each motion will always be considered in arriving at the appropriate amount for costs.

[52] The general principle for Motions for Leave to Appeal to the Divisional Court from interlocutory Orders is to reserve costs in the cause or to reserve costs for the Divisional Court appeal panel (Hanemaayer v. Freure, at paras. 8-9; Park v. Park, 2011 ONSC 5954, at para. 2). As explained by Justice Price at para. 23 of Brown v. Hudson’s Bay Co., 2014 ONSC 5079 (Div. Ct.), this is an exception to the general approach in r. 57.03(1)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 “based on the fact that the judges who determine an appeal are sometimes in the best position to determine who should have been responsible for the costs of a Motion for Leave to Appeal.”

[53] Justice Fredak expanded on this rational in Hanemaayer, at para. 10, holding that there was no reason to deviate from the general rule and listed several reasons for that particular matter:

a. Grounds on which leave to appeal an interlocutory Order as set out in Rule 62.02(4) of the Rules of Civil Procedure are partially discretionary and relate primarily to issues of public importance or the administration of justice. They do not therefore relate to the merits of the appeal itself. The test for determining whether or not leave should be granted has little or no impact on whether or not the moving party will ultimately be successful on its appeal;

b. Bearing in mind the discretion that motion judges possess, it is not always so clear that the motion for leave will not be opposed;

c. There is no evidence to substantiate the plaintiffs’ submission that the defendants’ opposition to the motion was a tactical decision;

d. There is no question that requiring leave to appeal serves a gatekeeper function for the appellate court. In this way the court regulates access to the appeal process, thereby preserving scarce judicial resources. This supports the view that costs of a motion for leave to appeal should be awarded in the cause;

e. The requirement that the court consider whether or not there is “good reason to doubt the correctness of the decision” is not a valid reason to depart from the normal rule of awarding costs in the cause in the appeal; and

f. When one of the reasons in granting leave to appeal is an apparent discrepancy in legal interpretation by learned authors, the determination of a cost award should reflect the result. This is consistent with the principle that costs are normally awarded in accordance with the result of that proceeding as envisioned in Rule 57.01 of the Rules of Civil Procedure.

[54] In Brown, at para. 19, the court also compares r. 57.03(1)(a) to r. 24(10) of the Family Law Rules, pointing out that the rationale of r. 24(10) [now r. 24(1)] of the Family Law Rules is to give parties “prompt feedback about the real cost of litigation at each step of their case” and serve “as a valuable reality check and as persuasive inducement to engage in negotiations with a view to settlement”. Rule 57.03(1)(a) of the Rules of Civil Procedure has a similar design, to “bring home to litigants the expense of motions and should be departed from only in ‘special circumstances’”: Brown, at para. 16.

[55] In Gavriluke v. Mainard, 2013 ONSC 1161, an appellant was successful on the motion for leave but lost on appeal. The approach of deferring the decision on costs until the disposition of the appeal was confirmed at paragraphs 3 and 5 because the appeal may ultimately be dismissed, and therefore, “the time and expense spent on the motion for leave to appeal may have no value” or end up being “worthless.” At the same time, if one is both successful on the motion for leave and the appeal, it would be logical for that party to have their costs of the motion for leave to appeal, and their costs of the appeal itself: see Gavriluke, at para. 4.

[56] I see no basis to depart from the general principle that costs for the Motion for Leave be determined at the conclusion of the appeal and that costs ought to reflect the result on the appeal pursuant to r. 57.01 of the Rules of Civil Procedure and s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.48. Given the multiple grounds of appeal addressed by the respondent in the leave motion and the appeal result, costs for the leave motion are granted to the respondent in the amount of $7,500 plus HST.

_______________________________ McGee J.

I agree _______________________________

MacLeod R.S.J.

I agree _______________________________

Lococo J

Date: May 14, 2025