When families are unable to sort out their issues and take them to court, someone is going to win and the other will lose. Likely, the loser will be ordered to pay some amount in costs to the other party. This is what happened to Mr. Ryan Phelps in Phelps v Childs, 2021 ONSC 1468 when he tried to appeal an order from Abrams J. dated June 11, 2019. The Appellant, Mr. Phelps was ordered to return his three children to their mother, the respondent Ms. Zoe Childs, with a direction to the police to assist in that return if necessary.
The parties had been granted joint custody of the children by Quigley J. in 2015. That order, granted on consent, specified that the children’s primary residence would be with Ms. Childs with access granted to Mr. Phelps. However, on June 6, 2019 Mr. Phelps decided he was done following the joint custody order and kept the children following an access visit. Ms. Childs started an urgent motion for their return which was granted by Abrams J. along with an order for costs of $3,000 payable to Ms. Childs from Mr. Phelps.
On June 11, 2019, Mr. Phelps decided that non-compliance with a court order was not a good look and returned the children. The appeal court, relying on the doctrine of mootness from the Supreme Court of Canada in Borowski v. Canada (Attorney General), 1989 CanLII 123 SCC, found “[t]here was no practical effect to an appellate decision on this case” as the children had already been returned. With no live issue to be determined, the appeal court declined to decide the appeal.
However, the issue of the costs order remained. Mr. Phelps required leave of the court to appeal the order pursuant to s.133(b) of the Courts of Justice Act. R.S.O. 1990 c. C.43. Per the legislation, leave to appeal the costs award “will be granted only if there is an error in law or principle or the order is clearly wrong.” Mr. Phelps did not meet the test for leave and the appeal was dismissed on the ground of mootness.
Mr. Phelps was ordered to pay costs in the amount of $4,000 to Ms. Childs payable within 30 days.