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An Ontario court recently considered the interesting question of when it might be appropriate to order a sealing order and publication ban in a family law proceeding.

The Parties’ Story

The parties, who were separated, had one child.

The father had brought a motion to change a final order that was made in 2015 and 2016. Before that matter could be determined, however, the father was charged with the following criminal offences:

  • sexual assault;
  • making explicit sexual material available; and
  • sexual interference.

Since the charges were laid in August 2018, the father had not had any access to the parties’ child.

While the parties consented to a sealing order and publication ban, the court heard submissions from both parties’ counsel in light of the importance of the “open court principle.”

The Supreme Court of Canada held that a publication ban should only be ordered where:

  • such an order is necessary to prevent serious risk to the proper administration of justice because reasonable alternative measures will not prevent the risk; and,
  • the salutary effects of the publication ban outweigh deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice.

That said, the Children’s Law Reform Act contemplates that in some cases in the family context, it will be appropriate to restrict openness of the court process. In determining whether a file should be limited, the court must consider:

  • the nature and sensitivity of the information contained in the documents relating to the application that appear in the court file; and
  • whether not making the order could cause physical, mental or emotional harm to any person referred to in those documents.

The courts have found that there is an obvious and important public interest in protecting vulnerable children from suffering trauma caused by their parents’ legal proceedings. However, publication bans are restricted as much as possible and sealing orders are rare.

The Court’s Decision

In ordering a publication ban and initialization, the court found that the issues in this matter were highly sensitive. That is, the father had been charged with serious crimes of a sexual nature in the context of a position of trust with children, and the children against whom the crimes were alleged to have been committed resided in the same community as the parties’ child. There was a risk that without restricting publication related to the file, the parties’ child would be identified by others and could be bullied or otherwise emotionally harmed.

That said, the court recognized that openness could be impaired only to the degree required to prevent the identified risks.

The court determined that a publication ban and initialization were required to prevent the risks to the child set out above. Initialization would provide anonymity to the child and the parties, and a publication ban would prevent the dissemination of information related to this case. However, the open court principle required that the public have access to the initialized file. The allegations were serious and there was a significant public interest in the openness of the file. Neither party could justify why a sealing order would be required over and above a publication ban and initialization.

The court explained that, in this instance:

… the salutary effects of a publication ban and initialization outweigh the deleterious effects on the rights and interests of the parties and the public. The administration of justice must be alive to children’s best interests and seek to minimize harm to children where it can be prevented. Preventing harm in this case requires the lesser incursions on the open court principle, not a sealing order.

Lessons Learned

It is always wise to get the assistance of a knowledgeable family law lawyer. At Gelman & Associates, our lawyers provide exceptional legal representation in all family law matters. Our goal is to always empower clients to make informed decisions about their future. We give all prospective clients a comprehensive family law kit during their initial consultation, as well as a copy of our firm’s handbook on separation and divorce. This information is full of resources that will help you understand and navigate the difficult and often complicated separation and divorce process.

With six offices throughout Aurora, Barrie, Downtown Toronto, Mississauga, North York and Scarborough, we are easily accessible by transit and off-highway. Our phone lines are open Monday to Friday from 8:00 a.m. to 8:00 p.m. Call us at (844) 769-0737 or 1-844-769-0737, or contact us online for an initial consultation.

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