McCord v. Holek
Cosgrove J. erred in dismissing the mother's custody application without a trial and in not referring custody and access to the Provincial Court; because adoption, custody and access are integrally related and the Provincial Court has exclusive jurisdiction over adoption, the custody and access trial must be held in...
Source-derived case information.
- Citation
- C30051
- Parties
- Applicant (appellant): Debra-Ann McCord; Respondent: Paul Gregory Holek; Respondent: William Frederick Cody
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 26 March 1999
- Procedural Posture
- Family Custody, Access and Adoption / Appeal From Judgment of Cosgrove J. Dated June 23, 1998
- Outcome
- Appeal allowed in part; paragraphs 3, 4 and 5 of Cosgrove J.'s order set aside; custody and access trial to be heard in Provincial Court; no costs.
- Legal Topics
- Custody, Access, Jurisdiction, Trial of Issue, Referral to Provincial Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Debra-Ann McCord
Applicant (appellant)
Paul Gregory Holek
Respondent
William Frederick Cody
Respondent
Procedural Posture
Family Custody, Access and Adoption / Appeal From Judgment of Cosgrove J. Dated June 23, 1998
Legal Issues
- 1 Whether the trial judge erred in dismissing the mother's application for custody without a trial of the issue
- 2 Whether custody and access should have been referred to the Provincial Court judge hearing the adoption matter
- 3 Whether leaving legal custody unresolved is contrary to the child's best interests
Ratio Decidendi
Cosgrove J. erred in dismissing the mother's custody application without a trial and in not referring custody and access to the Provincial Court; because adoption, custody and access are integrally related and the Provincial Court has exclusive jurisdiction over adoption, the custody and access trial must be held in Provincial Court.
Court Disposition
Appeal allowed in part; paragraphs 3, 4 and 5 of Cosgrove J.'s order set aside; custody and access trial to be heard in Provincial Court; no costs.
Orders
- Set aside paragraphs 3, 4 and 5 of the order of Cosgrove J.
- Direct that the trial of the custody and access issues be heard in the Provincial Court.
Full Case Text
Judgment text and source record
1 paragraphs
McCord v. Holek Collection Decisions of the Court of Appeal Date 1999-03-26 Docket numbers C30051 Judges Krever, Horace; Catzman, Marvin Adrian; Abella, Rosalie Silberman Subject Family Decision Content DATE: 19990326 DOCKET: C30051 COURT OF APPEAL FOR ONTARIO RE: DEBRA-ANN McCORD (Applicant (Appellant)) v. PAUL GREGORY HOLEK and WILLIAM FREDERICK CODY (Respondents) BEFORE: KREVER, CATZMAN and ABELLA JJ.A. COUNSEL: Jeffery Wilson or the appellant J.S. Armstrong for the respondent HEARD: March 22, 1999 On appeal from the judgment of Cosgrove J. dated June 23, 1998. ENDORSEMENT [1] The main issue in this appeal is whether Justice Cosgrove erred in dismissing the mother’s application for custody without a trial of an issue. The corollary issue was whether he erred in not referring the custody and access determinations to the Provincial Court judge hearing the adoption matter. [2] In our view, he erred with respect to both matters. The effect of Cosgrove J.’s order is to deprive both parents of legal custody and to leave unresolved the outstanding access issues. This uncertainty cannot be said to be in the child’s best interests. The child is entitled to know who has legal custody and what access rights she will have to the other parent. Because of the conflicts in the evidence, the resolution of these issues requires a trial. The matters of adoption, custody and access are integrally related and should be determined together. Since the Provincial Court has exclusive jurisdiction to hear the adoption issue, it should also hear the other two matters. [3] Accordingly, we allow the appeal, set aside paragraphs 3, 4 and 5 of the order of Cosgrove J., and direct that the trial of the custody and access issues be heard in the Provincial Court. In the circumstances, there will be no costs. “Krever J.A.” “Catzman J.A.” “Abella J.A.”