CITATION: Morin v. Muir, 2007 ONCA 78

DATE: 20070207

DOCKET: C45693

COURT OF APPEAL FOR ONTARIO

RE:

MARIANNE B. MORIN (Applicant (Respondent in Appeal)) – and – MICHAEL J. MUIR (Respondent (Appellant in Appeal))

BEFORE:

CRONK, LANG and JURIANSZ JJ.A.

COUNSEL:

Michael J. Muir

In person

Erika Valvasori

for the respondent

HEARD & RELEASED ORALLY:

February 2, 2007

On appeal from the order of Justice Terrence L.J. Patterson of the Superior Court of Justice dated June 8, 2006, dismissing an appeal from the order of Justice S. Zaltz of the Ontario Court of Justice dated December 14, 2005.

E N D O R S E M E N T

[1] The appellant Michael J. Muir appeals from the order of Patterson J. of the Superior Court of Justice dated June 8, 2006 dismissing his appeal from the order of Zaltz J. of the Ontario Court of Justice dated December 14, 2005, whereby the respondent Marianne B. Morin was granted custody of Michael Darrin Morin Muir (“Michael”) born June 22, 1988, the appellant was ordered to pay child support in the amount of $442 per month, and costs of the proceedings before the motion judge were awarded to Ms. Morin in the sum of $1,000, plus GST, payable forthwith by the appellant.

[2] The appeal judge, in succinct but clear reasons, concluded that the motion judge applied the correct legal principles in awarding custody of Michael to the respondent and that the motion judge was correct to hold that there was no genuine issue for trial. We agree with the appeal judge. We see no error in the decision of the motion judge or in the holdings of the appeal judge.

[3] In particular, the appeal judge did not err by concluding that the Charter of Rights and Freedoms has no application to this case, which involves a dispute between private individuals concerning custody and other issues related to their son. The refusal of the Office of the Children’s Lawyer in 2003 to become involved in this proceeding does not give rise to a justiciable Charter claim by the appellant against the respondent. More-over, and perhaps more importantly, we note that this is not a child protection proceeding. In addition, the matters complained of regarding the lack of involvement of a litigation guardian for Michael appear to have been determined in May 2005. Any right to appeal therefrom has long expired.

[4] Nor do we accept the appellant’s contention that the respondent’s request for custody of Michael was moot at the time of the proceedings before the motion judge. Although Michael is now eighteen years of age, his eighteenth birthday fell after the date of both the motion judge’s and the appeal judge’s orders. In the result, while the matter was not moot before, it is now.

[5] Finally, we see no basis on this record upon which to conclude that hearing fairness was compromised in the proceedings before the motion judge. The reasons of the motion judge reveal that he carefully considered the appellant’s claims. He provided brief but clear reasons for his rejection of those claims.

[6] For these reasons, the appeal is dismissed. The respondent is entitled to her costs of the appeal on a partial indemnity basis, fixed in the total amount of $3,000, inclusive of disbursements and GST. On consent of the parties, the judgment of this court (when finalized in conformity with these reasons) need not be sent to the appellant for approval as to form and content.

“E.A. Cronk J.A.”

“S.E. Lang J.A.”

“R.G. Juriansz J.A.”