In the case of Kudrocova v. Kronberger 2023 ONCA 26, a family in crisis agreed to a final custody order in 2016 which provided for a shared week on/week off parenting of girl/boy twins born in 2009. The order was confirmed in May 2019 and additional terms were added considering the continuing conflict between the parents, including a requirement that the parties attend coaching and counselling based on recommendations from counsellors from the “New Ways for Families” program.
The children’s mother, Claudia Kudrocova, was given final decision-making authority for the children’s education and the order was reviewable without a material change in circumstances after the counselling program was completed. Unfortunately, while the order was well-intentioned, the counselling was ineffective and the parties remained polarized, with the young boy refusing to see his mother and living with his father, Ferdinand Kronberger, in Brantford, Ont., and his sister residing exclusively with her mother in Cambridge, Ont., and refusing to see her father.
Each party brought an application in the fall of 2019. The mother sought sole custody of her now 10-year-old son with no access to his father. The father sought sole custody of his son and was content to let his daughter stay with her mother despite his misgivings. Because the May 2019 order gave decision-making on education to Kudrocova, the parties’ son lived in Brantford but attended school in Cambridge at his mother’s insistence, about 30 minutes away. This was an additional source of conflict between the parties.
A Views of the Child Report was conducted by the Office of the Children’s Lawyer in December 2019, which revealed that each child saw the parent with whom they lived as innocent and identified the other parent as the problem. The parties’ son indicated that he wished to remain with his father and attend school in Brantford, but would consider having contact with his mother every other weekend if his sister visited her father every other weekend. She expressed a willingness to do so if it was reciprocated. As it was, neither twin had seen the other outside of school since late 2018.
Kudrocova alleged parental alienation and sought to eliminate Kronberger from her son’s life. However, the court noted that she had no plan to address the alleged alienation and had not considered counselling, therapy or any other type of intervention for her son. The court determined that each parent had, consciously or not, encouraged a child to align with them and against the other parent, and reluctantly concluded that reunification therapy was unlikely to be successful without all parties and the children buying into it.
The court ultimately ordered in March 2020 that Kronberger would have sole custody of his son and Kudrocova would have sole custody of her daughter. Each parent would have sole decision-making authority over the child in their custody. The children were ordered to spend one Saturday every second weekend with the other parent. The motions judge left the door open for the parties to return to court if there was a concrete proposal for further therapeutic intervention (see Kronberger v. Kudrocova 2020 ONSC 1877.
Kudrocova appealed the court’s decision and submitted new evidence that the Saturday visits had been suspended because of incidents that erupted at her home during a visit. Her first ground of appeal was that the motion judge erred in making the orders in the absence of a material change of circumstances. This ground was quickly dispensed with as the May 2019 order specifically provided that custody was reviewable after the counselling program was completed, without the necessity of showing a change in circumstances. Her second ground of appeal was that the issue of parental alienation required a trial with viva voce evidence. However, the appeal panel pointed out that the hearing in the court below was based on affidavits and no one had requested oral evidence. Also, no one took the position that a trial was required to resolve the outstanding issues, nor was there any indication that the court below lacked sufficient evidence to make its determination.
Finally, the Appeal Court stated that the status quo at the time of the hearing in the court below was that each child lived with their preferred parent and the court’s order merely affirmed the existing situation. The new evidence was admitted, but the appeal was dismissed with costs to the father.
Lawdiva aka Georgialee Lang
**This article was first published in The Lawyer’s Daily, a publication of Lexis Nexis Canada.