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Canadian Family Court for the Public

In Canada, we have an open court system. That is probably obvious from the daily bombardment of information coming out of two sensational Ontario court cases presently under way: the Jian Ghomeshi sexual assault trial and the trial of Tim Bosma’s alleged killers. People might know that criminal proceedings are public and that citizens are invited to sit in and observe a criminal trial in any court in the land. But what people might not know is that the same is true of family law cases.

Family court is open to the public. When you start a proceeding in Ontario, your full name and that of your partner is front and centre on the court documents. When your case is scheduled to come to family court, your names will be on the lists posted outside of the courtroom. Members of the public can sit in on family proceedings.

Applications can be made to name the case by pseudonym or initials only, to exclude the public from the courtroom or to seal the court file. However, these requests are only very rarely granted. Judges take public and media access to a court proceeding seriously, considering it to be one of the foundations of our justice system:

The Canadian judicial system is based on a presumption that all court proceedings must be conducted in an open and public manner so as to maintain confidence in the administration of justice. The party seeking a sealing order must establish that such an order is necessary to protect societal values of superordinate importance in order to rebut the presumption. Hence, the test for granting a sealing order is whether the social value raised by the plaintiffs is one of superordinate importance to the rights of the public to open access.

The tests to either exclude the public or seal the file are stringent:

…to exclude the public from a courtroom, I need find only that a “possibility of serious harm or injustice” exists. However, under Sierra Club, supra, to seal court files from the public, I need to find there to be real and substantial risk, well-grounded in the evidence, that disclosure poses a serious threat to the plaintiff’s interest which cannot be protected by reasonable alternatives and that the benefits of sealing outweighs the deleterious effects to the public interest in open and accessible courts.

The test to proceed by initials is less so:

This family court possesses the jurisdiction to use initials or pseudonyms to protect the identity of parties pursuant to Rule 2.03 of the Rules of Civil Procedure, which enables the court, in the interests of justice, to dispense with the general rule that the names of parties be identified in the title of the proceeding (Rule 14.06): T. (S.) v. Stubbs, [1998] O.J. No. 1294, 38 O.R. (3d) 788 (Ont. Gen. Div.). The use of initials to identify the parties was ordered in R. (J.) in the absence of submissions on the point. In this case, the identification of the parties by initials is entirely appropriate, given the privacy interests that the parties and E.D. have in this matter.

Regardless, parties should be aware that, in all likelihood, their family law case will be public. Their names and those of their children will be evident from the material filed with the court. Parties who want to ensure privacy and confidentiality are, therefore, opting for mediation and arbitration, which are closed processes.