KRONBERGER v. KUDROCOVA, 2020 ONSC 1877
Court File No.: 47180-12 Date: 2020-03-26 Superior Court of Justice - Ontario
Re: Ferdinand Kronberger, Applicant And: Claudia Kudrocova, Respondent
Before: The Honourable Justice R. F. MacLeod
Counsel: Michael J. Ruhl, for the Applicant Gloria Ichim, for the Respondent
Heard: March 5, 2020
Endorsement
[1] The Respondent mother brought a Motion to Change dated October 30, 2019. The Applicant father filed a Response to Motion to Change dated November 27, 2019.
[2] The parties are the parents of twins, Frederick and Theresa, born July 25, 2009.
[3] The mother seeks an order granting her sole custody of Frederick, with no access to the father.
[4] Mother also seeks an order that the father pay $78,300 in arrears of child support, plus reimbursement of $23,517.58, "which she paid taxes due to the Applicant erroneous tax choices."
[5] Father seeks, inter alia, sole custody of the child Frederick, including sole discretion over Frederick's schooling, and an order that mother has sole custody of the child Theresa.
Issue 1: Arrears of Child Support
[6] The current order governing support is the final order dated May 3, 2019. That order includes the following sections regarding child support:
Neither party shall pay any child support to the other as neither party currently has any taxable or reportable income, which would be shown in line 150 of their 2017 tax returns.
All remaining claims by either party in this proceeding shall be dismissed without costs.
[7] The mother's claim for arrears of child support stems from the interim order of February 21, 2013. That order required the Applicant to pay the rent and utilities for the home at 16 Sinclair Crescent, Cambridge, plus an additional $250 per week to cover general grocery expenses.
[8] She alleges a shortfall between what the support order required and what was paid by the father.
[9] She argues that any arrears accrued under an interim order survive a subsequent final order.
[10] This argument is not correct. Unless expressly addressed in the final order, or otherwise acknowledged by the payor, arrears of child support accrued under an interim order do not survive.
[11] The final order of May 3, 2019, contains a specific clause regarding ongoing child support and contains a specific dismissal of any remaining claims.
[12] The final order also contains relatively elaborate property provisions involving corporate interests, real property, and the movement from one party to the other of significant settlement funds.
[13] Senior counsel represented the mother at the time of the final order.
[14] Mother's allegation that the issue of interim arrears of child support was understood by the parties to survive the final order is contrary to the plain wording of the order and is not credible.
[15] The mother's claim for an order enforcing arrears of child support accrued prior to May 3, 2019, must be dismissed.
Issue 2: Custody of Frederick
[16] The current parenting order governing the parties is the final order of August 25, 2016. This order provided for a pure shared parenting regime with the children spending time equally with each parent on a week about basis.
[17] The final order of May 3, 2019, maintained the parenting terms of the August 25, 2016 order but, since the family was already in crisis, included several provisions intending to assist the family in resolving their parenting differences. These provisions included:
a. immediate registration in the New Ways for Families short-term coaching and counselling program as recommended by Family and Children's Services of Waterloo; b. an order to follow the recommendations of Family and Children's Services of Waterloo concerning any further counselling that may be appropriate.
[18] The final order also gave the mother final decision-making authority for the children's education.
[19] This order specifically allowed that the court could review the residency provisions for the children without the need to prove a material change in circumstance, provided that the parties had completed the New Ways for Families short-term counselling and coaching program.
[20] This was a well-intentioned order that has been ineffective to date.
[21] The parties have completed the New Ways for Families program. The court was shown no evidence that the parties implemented any strategies, gleaned any insights, or retained any benefit from this service. They remain as polarized as they were in May 2019.
[22] Frederick left his mother's home in November 2018. Since that time, he has resided exclusively with his father in Brantford, Ontario, while Theresa has resided exclusively with her mother in Cambridge, Ontario. This has been the status quo for over a year.
[23] Frederick is refusing to see his mother. Theresa is refusing to see her father.
[24] Father has accepted his daughter's preference to remain in the care of her mother. Despite having significant reservations regarding the quality of parenting provided by the mother, his position at this motion is that Theresa should be placed in the sole custody of her mother. He is very much in favour of reestablishing regular access, both between siblings and with each parent.
[25] Frederick continues to attend school in Cambridge at the insistence of the mother, who is utilizing the powers granted to her under the final order of May 3, 2019. Father attempted to enrol Frederick in school in Brantford but, after rigourous objection by the mother, the Brantford school was forced to acknowledge the authority of the governing order and refused to allow Frederick to attend.
[26] On December 30, 2019, the Office of the Children's Lawyer confirmed that it would provide a Voice of the Child report conducted by clinical investigator, Glory To. His report is dated January 23, 2020.
[27] The report indicates that each child sees the parent with whom they are living as innocent and sees the other parent as the problem. Theresa has nothing negative to say about her mother and nothing positive to say about her father. Frederick has nothing negative to say about his father and nothing positive to say about his mother.
[28] Frederick confirms that the decision not to visit his mother is his decision, not influenced by his father. Theresa confirms that her mother encourages visits but that Theresa alone has decided against that.
[29] From Mr. To's Summary:
a. "Frederick's views and preferences are that his father be given sole custody so Frederick can attend school in Brantford. He does not wish to have any contact with his mother but will consider every other weekend visits if his sister would visit their father every other weekend. b. Theresa's expressed views and preferences are that all decisions regarding her are to be made by her mother. She wants to continue to live with her mother and not to have any contact with her father. She would only consider visiting with her father on weekends if Frederick would have visits with their mother. c. There are a few concerns regarding the children's views and preferences being independent. Firstly, both children seem to have arrived at the interview with an agenda. Secondly, neither Frederick nor Theresa were able to verbalize the basis of their negative feelings towards one of their parents. Thirdly, while both parents seem to have engaged in what appears to be fun activities with the children before their refusal to visit, yet the children claimed that they cannot think of anything they like during visits. Lastly, after Frederick refused to visit with his mother, Theresa also refused to visit with her father. Although both children denied their refusal to visit one of their parents are in any way related, they express willingness to visit if the other would do the same."
[30] These children have not seen each other outside of school since late 2018. It is remarkable that, despite the clear indication in Mr. To's report that the children wish to see each other, these parents have been unable to follow the clear path uncovered by the report.
[31] Mother alleges "parental alienation" and seeks to eliminate father from Frederick's life for the foreseeable future. Yet, the mother has no plan for how to address the effects of alienation if her desired order were to be granted. She has not lined up any professionals, any counsellors, any therapy, or any intervention of any nature for her son. She simply asks the court to place him in her care with all of his hostility towards her unaddressed.
[32] The father, similarly, does not present any plan for the children to address the fall out from this parental tug-of-war. His plan, however, does address and align with the clearly stated wishes of the children. He is saddened by his daughter's turn against him, and is willing to follow any promising pathway towards reconciliation, but asserts that he is in no position to fight it at this time.
[33] Dr. Barbara-Jo Fidler's work in this area is well known. Courts have taken judicial notice of her list of warning signs of behaviour exhibited by children in alienation cases on over 30 occasions [1]. The following warning signs, as identified by Dr. Fidler, are displayed by one or both of these children:
- View of parents one-sided, all good or all bad; idealizes one parent and devalues the other
- Vicious vilification of target parent; campaign of hatred
- Trivial, false and irrational reasons to justify hatred
- Reactions and perceptions unjustified or disproportionate to parent's behaviours
- No guilt or ambivalence regarding malicious treatment, hatred, etc.
- A stronger, but not necessarily healthy, psychological bond with alienating parent than with rejected parent
- Denial of hope for reconciliation; no acknowledgement of desire for reconciliation.
[34] It is more likely than not that each parent has, consciously or not, encouraged a child to align with them against the other.
[35] Now what?
[36] The current gold standard strategy [2] to address children refusing contact with a parent involves:
a. Early interim intervention; b. Court-appointed mental health professionals with specific expertise, with knowledge of available resources for interventions, and with time to prepare a timely report; c. In-depth interim hearings allowing for cross-examination of the lay evidence and professional evidence; d. Therapy and/or education between interim and final hearings, with sufficient elapsed time to obtain feedback.
[37] The May 3, 2019 consent order attempted to obtain early help for the family in the form of immediate registration in the New Ways for Families short term coaching and counselling program. While the parties completed the program, nothing came of it. No agreements regarding parenting were reached. There was no ongoing engagement with professionals. There was no follow up. The parents each turned directly to the court to resolve their differences on a final basis.
[38] This 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. Nothing seems to have helped.
[39] After hearing argument, I encouraged counsel to provide to me the particulars of any services, programs or professionals available in the area who could address the significant issues facing these children on a go-forward basis. I received a list of service providers, only two of which appeared able to deal with these serious issues. One was New Ways for Families. They've already taken their best shot.
[40] The other was a local firm advertising "Reunification Therapy." No information was provided as to:
a. The suitability of their program to this case; b. The firm's willingness to take this case; c. Either parent's willingness to engage with this firm; d. Either parent's willingness to pay the costs of this firm's involvement.
[41] Absent better information, I cannot determine that ordering this family to engage this firm, or any other, for Reunification Therapy is in the children's best interests.
[42] If both parents are opposed to it, then forcing the parents to reattend with a Reunification Therapy plan is unlikely to benefit these children.
[43] 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.
[44] Mother has not established that it is in Frederick'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.
[45] I would say the same with respect to Theresa if her father were asking that she removed from her mother's care and control. But he is not.
Schooling
[46] It is understandable that the mother would be frustrated by her son's adamant reluctance to live with her or to attend school in Cambridge at her insistence. She has a valid court order, and she has a right to expect that it will be followed. But blind adherence to her position, in the face of opposition of this magnitude, without any viable plan to address the underlying issues, is not helping her son.
[47] Mother's insistence that the child continue to attend school in Cambridge is ill-advised.
[48] The only viable rationale for this position is that the school is the single location where her children interact. This will change, as outlined below.
[49] The child should attend school in the community where he lives and where he has consistently stated that he wants to attend.
Access between siblings
[50] The children want to spend time together. They each, independently, confirmed to Mr. To that they would enjoy time with the other in the home of the nonaligned parent so long as this time is reciprocated in their home.
[51] In submissions, father urged that time together be limited to one day each weekend as ordering entire weekends may be too much to adjust to immediately. This seems reasonable in the circumstances.
Orders
[52] The Applicant father shall have sole custody of the child, Ferdinand Frederick Bartolomej Kronberger, born July 25, 2009.
[53] The Respondent mother shall have sole custody of the child, Claudia Theresa Gabriela Kronberger, born July 25, 2009.
[54] The Applicant father shall make important decisions regarding the welfare of the child, Frederick, including decisions about the child's:
a. education; b. major nonemergency medical and healthcare; c. major recreational activities; and d. religious activities.
[55] The Respondent mother shall make important decisions regarding the welfare of the child, Theresa, including decisions about the child's:
a. education; b. major nonemergency medical and healthcare; c. major recreational activities; and d. religious activities.
[56] The children shall spend each Saturday together from 11:00 a.m. through 7:00 p.m. commencing April 18, 2020.
[57] On April 18, 2020, and alternate Saturdays after that, the children shall be together at the Applicant father's residence and under his care and control. On April 25, 2020, and alternate Saturdays after that, the children shall be together at the Respondent mother's residence and under her care and control.
[58] The parent with the child shall deliver the child to the other parent's house at the commencement of Saturday parenting time. The parent exercising Saturday parenting time shall return the child to the other parent at the end of Saturday parenting time.
[59] Either party may bring a motion for expansion, reduction, or alteration of sibling access without showing a material change in circumstances.
[60] Either party may bring a motion, without showing a material change in circumstances, seeking the appointment of a court-ordered medical health professional, or similar relief seeking to address either child's relationship with either parent. The moving party must outline the specifics of the order being sought including:
a. the identity and qualifications of the professional or program being promoted; b. the suitability of their program to this case; c. the professional's willingness to take this case; d. either parent's willingness to engage with this professional/program; e. the estimated costs of the program; and f. either parent's willingness and ability to pay the costs of this professional's involvement.
[61] The Applicant father shall have sole discretion regarding the child Frederick's enrolment in school.
[62] The Applicant father shall have possession of Frederick's health card, passport and birth certificate. The Respondent mother shall have possession of Theresa's health card, passport and birth certificate.
[63] The Respondent mother's motion for enforcement of arrears of child support accrued before May 3, 2019, is dismissed.
Costs
[64] At the close of submissions, I was advised that no offers to settle were exchanged.
[65] The father has been wholly successful in his motion, and he is presumptively entitled to his reasonable costs.
[66] The mother brought an unreasonable motion for enforcement of arrears under an interim order. The father should receive substantial indemnity costs for his defence of this motion. It was a simple motion to defend, however, and I would expect the bill of costs relating to this portion of the argument to be considerably less than the portion pertaining to the parenting issues.
[67] The parties are directed to exchange bills of costs within 30 days. They are encouraged to resolve the issue of costs having regard to my comments above. If necessary, the parties shall provide submissions on costs consisting of no more than two pages, plus bills of costs. The submissions, given the COVID-19 court shut down, are to be provided no earlier than June 12, 2020, and no later than June 26, 2020. If no submissions are received by June 26, 2020, then the issue of costs shall be deemed to be resolved.
R. F. MacLeod, J. Date: March 26, 2020
[1] For example: L.(A.G.) v. D.(K.B .), [2010] OJ 180 (Sup. Ct. J.); Murphy v. Murphy (2009), 188 A.C.W.S. (3d) 1077; Fielding v. Fielding, 2013 ONSC 5102
[2] Polak, Altobelli, & Popielarczyk, Responding to Severe Parent-Child Rejection Cases Without A Parentectomy: A Blended Sequential Intervention Model and the Role of the Court
