Court File and Parties

CITATION: Phelps v. Childs, 2021 ONSC 1468

DIVISIONAL COURT FILE NO.: DC-19-2504

DATE: 20210301

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: RYAN TIMOTHY PHELPS, Applicant (Appellant)

AND:

Zoe Michelle Julia Childs, Respondent (Respondent on Appeal)

BEFORE: Swinton, Gordon and McCarthy JJ.

COUNSEL: Ryan Phelps, acting in person Linda A. Hanson, for the Respondent

HEARD at Ottawa (by videoconference): February 26, 2021

Endorsement

[1] The appellant Ryan Phelps appeals from an order of Abrams J. dated June 11, 2019, which ordered him to return his three children to their primary residence with their mother, the respondent Zoe Childs, with a direction to the police to assist if needed. The motion judge also ordered the appellant to pay costs of $3,000 within seven days, and that aspect of the order is also under appeal.

[2] The parties are subject to an order of Quigley J., made on consent January 5, 2015, granting joint custody, specifying the children’s primary residence was with the respondent, and granting specified access to the appellant. The appellant failed to return the children to their primary residence on June 6, 2019 following an access visit.

[3] This Court ruled, during the oral hearing of the appeal, that the appeal on the merits was moot. These are the reasons for that ruling.

[4] The Supreme Court of Canada explained the doctrine of mootness in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342:

The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case.

[5] There is no live dispute between the parties here with respect to the return of the children to their primary residence, since the order was complied with on June 11, 2019. Thus, no purpose would be served in determining this appeal on the merits.

[6] While a court has the discretion to hear a matter that is moot, there is no reason to exercise our discretion in this case. The issues raised are not elusive of appellate review. There is no practical effect to an appellate decision in this case.

[7] That leaves the issue of the costs order. The appellant requires leave to appeal costs (see s. 133(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43). Leave will be granted only if there is an error in law or principle or the order is clearly wrong (Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303 at para. 27).

[8] The appellant has not met the test for leave. The motions judge allowed an urgent motion to proceed on June 11, as the children had not returned to their primary residence on June 6 in accordance with the existing court order, and they had had no contact with their mother prior to the motion. Costs on a full indemnity basis were reasonable and within the judge’s discretion. Therefore, leave to appeal the costs order is denied.

[9] The appeal is dismissed on the ground of mootness. As such, we make no comment on the merits of the appeal.

[10] Costs are ordered to the respondent in the agreed amount of $4,000 payable within 30 days.

Swinton J.

Gordon J.

McCarthy J.

Date of release: March 1, 2021