REASONS FOR DECISION

[1] Does subrule 17(8) of the Ontario Family Law Rules, O. Reg. 114/99 (FLR), provide jurisdiction to a case conference judge to award sole decision-making and interim support, if the payor parent/spouse does not attend to oppose? In the unusual circumstances of this case, the applicant mother’s Case Conference Brief asked for sole decision-making powers for the children and significant child support and spousal support, but the respondent father has filed neither an answer nor a case conference brief. The proposed support is based on the father’s most recent disclosed annual income of $621,393 and the mother’s imputed income of $32,000.

[2] During the 21-year marriage, the mother was the primary caregiver of the children, now ages 16 and 13. She has modest self-employment income but is prepared to have her current income imputed near minimum wage. The father is an executive at a pharmaceutical company. He travels frequently and only visits the children sporadically. His 2021 income was as stated above, and historically his annual income hovered around the $600,000 mark.

[3] These facts and the details regarding them are not in evidence, but rather they are facts set out in a Form 17A Case Conference Brief to which the father has not cared to respond with his own brief. Based on this uncontested data, the DivorceMate calculations for child support amount to $7,734 per month. The same software produced a range of $11,304 to $14,384 under the Spousal Support Advisory Guidelines’ ‘with-child-support’ formula. In the brief, the mother has sought a temporary and without-prejudice order for child support starting from December 1, 2023, and spousal support in the mid-range figure of $12,852.

[4] The Divorce Act, R.S.C. 1985, c. 3 (2^nd Supp.), in ss. 15.1 and 15.2, does not specify the procedural steps for interim support orders. Had this been a rule 14 motion, the court would have no difficulty ordering the support on an interim and without prejudice basis. Usually, a case conference judge would also attempt to broker a consent order that obviates the need for a contested motion. Here, the father has not defended and did not appear at the hearing of the conference. If he were to bring a motion to set the order aside or appeal this decision, he would have to file evidence and establish that the result on a formal motion would have led to a different order: Heston-Cook v. Schneider, 2015 ONCA 10, [2015] O.J. No. 120, at para. 12.

[5] 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;

[6] 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.

[7] 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.

[8] 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).

[9] 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.

[10] Therefore, the court hereby makes the following orders set out in para. 13 of the applicant’s Case Conference brief, on a temporary and without-prejudice basis:

The applicant mother shall have sole decision-making authority for the children [names and birthdates to appear on endorsement].
As of December 1, 2023, the respondent father shall pay the applicant mother monthly table child support in the amount of $7,734.
As of December 1, 2023, the respondent father shall pay the applicant mother monthly spousal support in the amount of $12,852.
Support deduction order to issue.
The respondent father shall provide disclosure by answering the Form 20 Request for Information, dated December 7, 2023, within 30 days hereof.
The respondent father shall pay the applicant mother costs of the case conference in the amount of $2,500 plus HST.
The combined Settlement Conference and Trial Management Conference will take place on May 7, 2024, at 12:00 p.m., unless vacated by an order pursuant to an uncontested trial.

Akazaki, J.

Released: December 18, 2023

Laxmikantha v. Adapa, 2023 ONSC 7151

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