



COURT OF APPEAL FOR ONTARIO

CITATION: Kudrocova v. Kronberger, 2021 ONCA 563

DATE: 20210805

DOCKET: M52528 (C68576)

van Rensburg J.A.
    (Motions Judge)

BETWEEN

Claudia Kudrocova

Appellant (Moving Party)

and

Ferdinand Alois Kronberger

Respondent (Responding Party)

Juliet Montes, agent for Tiffani Frederick, for the
    moving party

Michael Ruhl and Kayla Gordon, for the responding party

Heard and released orally: August 4, 2021

ENDORSEMENT

[1]

This is a motion to set aside the Registrars dismissal of an appeal for
    failure to perfect on time, and awarding costs to the respondent of $750. The
    Order is dated December 9, 2020.

[2]

The appeal is of the orders of Justice McLeod made March 26, 2020 and May
    14, 2020 and the costs orders of June 30, 2020. The orders are in relation to
    the parenting of the parties two children.

[3]

After a Notice of Appeal was served on the respondent personally on
    August 15, 2020, the appeal has proceeded in a manner accurately described by
    Mr. Ruhl, the respondent fathers counsel, as sluggish.

[4]

There have been a variety of problems which were caused or contributed
    to by the appellants initial appeal counsel, which may have resulted, in part,
    from her health problems and car accident in December, 2020. These include: not
    sorting out a fee waiver or attending to pay the fee for filing documents in this
    court; service on the father instead of on his lawyer; not making it clear
    whether the mother was representing herself or represented by counsel; and most
    recently, failing to serve this motion on the respondent until notified by the
    court of the pending motion date. In the interim, counsel for the father was
    served with all of the appellants materials for the appeal, and prepared and
    served, and attempted to file, the responding materials.

[5]

Mr. Ruhl has fairly acknowledged that, except for the Registrars
    dismissal, the appeal has essentially been perfected. The appeal materials were
    served on Mr. Ruhl on October 20, 2020, with amended materials served on
    November 10, 2020. Mr. Ruhl fairly consented to the late filing of the amended
    appeal materials, and on December 18, 2020 he served responding materials, but
    he learned of the Registrars dismissal when trying to file his materials.

[6]

The factors to consider on a motion to set aside a Registrars dismissal
    are 1) whether the moving party had an intention to appeal within the time for
    bringing an appeal; 2) the length of the delay and any explanation for the
    delay; 3) any prejudice to the respondent caused by the delay; and 4) the
    justice of the case:
Paulsson v. University of Illinois
, 2010 ONCA 21,
    at para. 2. The overriding consideration on a motion to set aside a dismissal
    order is the justice of the case, which can include consideration of the merits
    of the appeal:
Akagi v. Synergy Group (2000) Inc
., 2014 ONCA 731, at
    para. 8 (in that case the appeal raised serious issues).

[7]

The moving partys affidavit explains that the delay was the fault of her
    first lawyer on the appeal, who did not sort out the question of a fee waiver,
    and then led her to believe that everything was rectified, and that her appeal
    was proceeding. After receiving the notice dismissing her appeal, the mother
    was assured by the lawyer that a motion to set aside the Registrars dismissal
    order would be brought. Apparently, the lawyer was in a car accident, and
    another lawyer, Ms. Frederick, took over the file in January 2021. This motion
    was brought several months later and was argued by Ms. Montes attending as Ms.
    Fredericks agent.

[8]

The fathers affidavit sets out a chronology of events. The motion to
    set aside the Registrars order is opposed primarily on the basis of the appellants
    delay. The father also asserts that the appeal has little merit, and that to
    the extent the mother is concerned about what she characterizes as the separation
    of the children, there is a mechanism in place for reattendance before the
    trial judge. He is also concerned about the effect of the ongoing delay on the
    children, who have grown accustomed to the parenting orders that were made. The
    father seeks costs of the appeal in excess of the $750 awarded by the Registrar
    for the materials that counsel has prepared to respond to the appeal.

[9]

I have concluded that it is in the interests of justice for the
    Registrars order to be set aside, and for the appeal to be permitted to
    proceed.

[10]

The
    circumstances are unusual. First, the appellant reasonably understood that her
    appeal was proceeding. The circumstances leading to the Registrars Order, as
    well as the delay in bringing the motion, are not of her making. She should not
    suffer the consequences of her lawyers oversight or inattention: see
Akagi
,
    at para. 6. Second, all of the materials have been prepared, including the
    responding materials and the appeal can be perfected without delay. Third, I am
    not persuaded in the circumstances that the delay is prejudicial to the
    childrens best interests. The current
status quo
will continue while
    the appeal is pursued.

[11]

I
    do not express any opinion on the merits of the appeal based on the limited
    argument before me on this point. I remind the appellant that the function of
    this court is not to retry the case on appeal, and that intervention is
    warranted only if there is a material error, a serious misapprehension of the
    evidence, or an error of law:
Van de Perre v. Edwards
, [2001] 2 S.C.R.
    1014, at para. 13. If, as the father submits, the errors that are relied upon
    by the mother are simply questions of fact, she will have a very difficult time
    with this appeal.

[12]

Accordingly,
    an order will go setting aside the Registrars order of dismissal; requiring
    the appeal to be perfected by August 20, 2021; and expediting the hearing of
    the appeal. By agreement of the parties, there is no order as to costs on this
    motion.

K. van Rensburg J.A.


