“The rules of court set out the procedural jurisdiction for the granting of orders on a case conference. Subrule 17(8) contains the following paragraphs relevant to the issue raised by the applicant:
(b.1) if notice has been served, make a final order or any temporary order, including any of the following temporary orders to facilitate the preservation of the rights of the parties until a further agreement or order is made:
(i) an order relating to the designation of beneficiaries under a policy of life insurance, registered retirement savings plan, trust, pension, annuity or a similar financial instrument,
(ii) an order preserving assets generally or particularly,
(iii) an order prohibiting the concealment or destruction of documents or property,
(iv) an order requiring an accounting of funds under the control of one of the parties,
(v) an order preserving the health and medical insurance coverage for one of the parties and the children of the relationship, and
(vi) an order continuing the payment of periodic amounts required to preserve an asset or a benefit to one of the parties and the children;
(c) make an unopposed order or an order on consent;
Beginning with para. (b.1), the requirement of notice appears to have been satisfied by the service of the Case Conference Brief, paragraph 13 of which listed the interim remedies. The court has commented in the past that the rule does not state what form the notice must take: Hoque v. Mahmud, 2007 CanLII 39366 (ON SC), at para. 15.
However, at para. 14, the court stated it was less clear whether the rule conferred authority to grant relief on substantive issues. The ambiguity can be resolved readily by assuming the drafters followed the usual rules of legislative construction. On first impression, it would appear that para. (b.1) is limited by subject matter to preservation orders and maintenance of financial status quo. However, the specific list of preservation mechanisms follows a general phrase “any temporary order” (emph. added) and is connected by the word “including.” This grammatical structure takes the meaning outside the ejusdem generis rule (limited class interpretation) and protects the generality of the antecedent. See: Sullivan, The Construction of Statutes, Seventh Ed. (Toronto: LexisNexis, 2022), at p. 242, citing National Bank of Greece (Canada) v. Katsikonouris, 1990 CanLII 92 (SCC), [1990] 2 SCR 1029, at 1040-41. It therefore follows that the case conference judge is authorized to grant any temporary orders, if satisfied that the other party has been given due notice.
While is does not appear necessary to interpret para. (c), specifically “unopposed order,” this concept is analogous to the unopposed order on a motion in the Civil division of the court, specifically subrule 37.12.1(1) of the Rules of Civil Procedure, O. Reg. 1990, Re. 194 (RCP), providing for unopposed motions. Under that provision, the moving party must file a notice from the respondent stating that the party does not oppose. I do not infer from this requirement of an affirmation of a negative to change the nature of an unopposed motion as one in which there is no position or interest adverse to the proponent. The failure to respond to a motion or to appear at the hearing places the respondent in substantive jeopardy, provided notice has been given (RCP, r. 37.07).
I conclude from the foregoing that subrule 17(8) of the FLR confers jurisdiction on a case conference judge to award interim relief of the kind sought by the mother, provided notice is clearly given and stated in the Case Conference Brief and the relief is an appropriate remedy in the circumstances. This interpretation of the rule places the burden on the erstwhile non-participatory spouse/parent to bring a motion to set the order aside, instead of requiring the presumed recipient of support to bring a separation motion. This would have the effect of reducing steps in most cases and promoting general principles of the FLR in streamlining cases, getting payor spouses used to the idea of paying support, and of rounding up recalcitrant parties into the precinct of the court.”