COURT OF APPEAL FOR ONTARIO
CITATION: Kudrocova v. Kronberger, 2023 ONCA 26
DATE: 20230112
DOCKET: C68576
Roberts, Thorburn JJ.A. and Tzimas J. (ad hoc)
BETWEEN
Claudia Kudrocova
Appellant
and
Ferdinand Alois Kronberger
Respondent
Tiffani Frederick, for the appellant
Michael J. Ruhl and Kayla Gordon, for the respondent
Heard and released orally: November 26, 2021
On appeal from the order of Justice Robert F. MacLeod of the Superior Court of Justice, dated March 26, 2020, with reasons reported at 2020 ONSC 1877.
REASONS FOR DECISION
[1] This appeal involves issues of parental responsibility and decision-making for two twelve-year old twins in a very difficult case that has bitterly divided the family members and resulted in the daughter wanting nothing to do with her father and the son wanting nothing to do with his mother.
[2] While previous orders provided for shared parenting and decision-making of the children, the March 26, 2020 final order under appeal maintained the de facto status quo that has existed since November 2018: the daughter will stay with her mother; and the son will stay with his father; the order also provided that the twins will spend alternate Saturdays with each other at their respective parents’ homes.
[3] The motion judge found that “It is more likely than not that each parent has, consciously or not, encouraged a child to align with them against the other”. The motion judge determined that the order maintaining the children’s present living arrangements would be in the children’s best interests, given the failure of early therapeutic intervention in this family, and the absence of any real plan for or willingness to engage in further therapy. He noted that the family has had extensive involvement with the Children’s Lawyer, Family and Children’s Services, counsellors through the education system and several other service providers and that “Nothing seems to have helped.” However, he left the door open for the parties to return to court to seek an order for therapeutic help to address either child’s relationship with either parent. He explained: “However if either parent is inclined to try to heal the family relationships, this court will remain ready and willing to assist. For now, I must determine what is best for the children in the present, accepting that no therapy is on the immediate horizon” (emphasis in original).
[4] Sadly, the motion judge was called upon subsequently to make further orders temporarily suspending the Saturday visits at the mother’s residence because of the incidents that erupted at the appellant’s home during one of those visits.
[5] The appellant submits that the motion judge erred and that his March 26, 2020 order and subsequent orders should be set aside. She raises two threshold issues: first, that the motion judge erred by making the March 26, 2020 order without first finding a material change in circumstance; second, that there are issues of credibility, particularly involving the issue of parental alienation, that require a trial. In the alternative, she argues that he erred in his finding of parental alienation, by concluding that the son’s present living arrangements represented the status quo because she alleges the respondent father is in breach of previous orders providing for shared parenting and decision-making, and in concluding that the present arrangements are in the son’s best interests. She seeks to put fresh evidence before the court. She asks for an order reinstating the previous orders and, in the alternative, for sole parental responsibility and decision-making authority for the son until he reintegrates with her and requiring the parties and children to participate in reunification therapy.
[6] We do not accept the appellant’s submissions.
[7] First, the demonstration of a material change in circumstances was not a precondition to the motion judge’s order. As the motion judge noted, the May 3, 2019 consent order of Broad J. in paragraph 3, expressly provides that the residency provisions of the children shall be reviewable upon motion to the court on the instance of either party without showing a change in circumstances, subject to completing programing, which they did.
[8] Second, the parties proceeded before the motion judge on affidavit evidence. No one requested viva voce evidence. No one took the position that the motion judge could not determine the issues before him without a trial. There is no indication that he could not do so. Nor is there any indication that he did not have sufficient evidence to make the determinations that he did, as reflected in his order.
[9] With respect to the other issues raised, in our view, the motion judge’s order was correct and reasonable. We note that he left the door open for the parties to return with a concrete proposal for further therapeutic intervention. The children’s present living arrangements was the effective status quo. He carefully reviewed the evidence, the parties’ arguments, and focused his attention on what was in the best interests of the children in this extremely difficult case. His conclusion about likely parental alienation was firmly grounded in the record, including the Voice of the Child report that expressed concerns about the lack of independence in the children’s stated and polarized views about their parents. So was the motion judge’s finding that therapy was not on the horizon at that time.
[10] The motion judge’s conclusion on whether the son should return to live with the appellant was supported by the evidence. As he stated: “Mother has not established that it is in [F’s] best interests to change the status quo. To the contrary, nothing but continued chaos can be foreseen if he were to be forced to live with his mother, whom he overtly “hates,” without a concrete, professionally guided, plan in place. Mother has no such plan. Her position cannot be supported.”
[11] We see no basis to interfere with the motion judge’s conclusions. If the parties wish to address further the question of further therapy, as the motion judge expressly indicated at para. 32 of his May 14, 2020 endorsement, “This court remains ready and willing to review the situation upon receipt of new data, particularly with expert input.”
[12] We see no error in the motion judge’s decision. While we admit the fresh evidence, the appeal is dismissed.
[13] The appellants shall pay the respondent the costs of the appeal in the agreed upon amount of $16,100.32, inclusive of disbursements and all applicable taxes.
“L.B. Roberts J.A.”
“J.A. Thorburn J.A.”
“E. Ria Tzimas, J. (AD HOC)”