Court of Appeal for Ontario

Date: 2025-06-12
Docket: M55982 (COA-25-CV-0516)
Judge: L. Madsen
Heard: 2025-05-30

Between:
Kirby (Appellant / Moving Party)
and
Woods (Respondent / Responding Party)

Counsel:

• Martha McCarthy and Nicole Burrows, for the appellant
• Meghann P. Melito, for the respondent
• Renatta Austin, Caterina Tempesta, and Cheryl Robinson, for the Office of the Children’s Lawyer

Endorsement

Introduction

[1] Parent 1[^1] has appealed an order of the Superior Court returning the child to her habitual residence under the Hague Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35. The application judge found that the child had been wrongfully retained in Canada and that the exception to mandatory return based on risk of serious harm was not engaged. Prior to the decision, the Immigration and Refugee Board of Canada (the “IRB”) granted the child refugee status.

[2] In the context of the appeal to this court, Parent 1 brings this motion for restrictions on access to the court file for the appeal and the decision rendered in connection with the appeal. Parent 1 seeks initialization, a prohibition on publishing information that would identify the parents and/or the child, and an order sealing any documents created pursuant to the Immigration and Refugee Protection Act (the “IRPA”), including but not limited to the IRB’s decision granting refugee status. Parent 1 no longer seeks an order sealing the entire court file. The Office of the Children’s Lawyer (the “OCL”), which represents the child, supports Parent 1’s motion and the specific relief sought. Confidentiality restrictions were not sought at the court below.

[3] Parent 2 opposes the motion, save and except for an order initializing the file, and a non-publication order for information that would have the effect of identifying the child.

[4] This court directed notice to the media of the time and date of this motion. No representatives of the media attended.

[5] For the reasons below, I order certain restrictions on access set out below to protect the interests of the child.

A. Legal Framework and Analysis

(1) Constitutional Principles and Applicable Legislation

[6] Any request to restrict access to court proceedings engages foundational principles of court openness and freedom of expression under s. 2(b) of the Charter. The open court principle is considered a “cornerstone of the common law” and a “hallmark of a democratic society”: Vancouver Sun (Re), 2004 SCC 43, [2004] 2 S.C.R. 332, at paras. 23-24. The Supreme Court of Canada held in Vancouver Sun that the open court principle is “inextricably linked” to freedom of expression: at para. 26. As Cory J. noted in Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326, “it is difficult to imagine a guaranteed right more important to a democratic society than freedom of expression”: at p. 1336.

[7] However, court openness is not absolute. Limits may be required to safeguard other core values and principles. The protection of children is one such core value, grounded in the United Nations Convention on the Rights of the Child, Can. T.S. 1992 No. 3 (the “CRC”) to which Canada is a signatory, and in legislation.

[8] Article 3.1 of the CRC provides:

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

[9] Referring to the CRC, Benotto J.A. unequivocally stated in Ontario (Children’s Lawyer) v. Ontario (Information and Privacy Commissioner), 2018 ONCA 559, 141 O.R. (3d) 481, at para. 64, leave to appeal refused, [2018] S.C.C.A. No. 360, that “[c]hildren are among the most vulnerable members of society. Courts, administrative authorities, and legislative bodies have a duty to recognize and protect their interests.” She emphasized that “[w]henever a child is affected by a court or government process, the primary consideration must be the child’s best interests”: at para. 58.

[10] Ontario legislation recognizes that limits on court openness may be appropriate in some cases, and, in furtherance of the goal of protecting children affected by litigation, specifically requires courts to consider such limits in parenting cases:

• Section 137(2) of the Courts of Justice Act permits any filed document to be “treated as confidential, sealed and not form part of the public record.” No factors are set out to structure the court’s discretion.
• Section 70(1) of the Children’s Law Reform Act provides that in a parenting case, the court shall consider, “whether it is appropriate to order … that access to all or part of the court file be limited”. Section 70(2) further provides that in determining whether to make such an order, “the court shall consider … the nature and sensitivity of the information contained in the documents relating to the application … and whether not making the order could cause physical, mental or emotional harm to any person referred to in those documents”.
• Rule 1.3 of the Family Law Rules establishes a notice requirement in circumstances where a non-party wishes to gain access to a family law file where there are children involved, such that if the parties wish to take steps to seek a confidentiality order, they have an opportunity to do so.

[11] I note that the Divorce Act, under which parenting orders for children of divorcing couples are made, does not contain a parallel provision. At the same time, s. 70 of the CLRA informs the exercise of the discretion under s. 137(2) of the CJA to make confidentiality orders, and in this way equally requires the consideration of confidentiality orders in those parenting cases.

[12] In this case, there are additional relevant legislative provisions and policy instruments related to the child’s refugee determination and her privacy interests:

• Section 166(c) of the IRPA provides that refugee determination proceedings before the Refugee Protection Division and the Refugee Appeal Division, whether involving adults or children, must be held in the absence of the public.[^2]
• The IRB’s Chairperson’s Guideline #3: Proceedings Involving Minors at the Immigration and Refugee Board ("Guideline 3”) contemplates additional safeguards for the protection of sensitive information related to refugee children, including a confidentiality order: at para. 6.8.2. Guideline 3 also confirms that the IRB must give primary consideration to the best interests of the child “in every interaction”: at para. 4.1.1.

(2) Applying Sherman Estate to Parenting Cases

[13] The Supreme Court of Canada’s decision in Sherman Estate v. Donovan, 2021 SCC 25, [2021] 2 S.C.R. 75, provides guidance on the test for imposing discretionary limits on court openness.

[14] In Sherman Estate, the court clearly acknowledges that the test applies, “subject only to valid legislative enactments”: at para. 38. In this way, the test does not supersede s. 70 of the CLRA, but rather informs the appropriate exercise of discretion thereunder.

[15] Read together, in my view, s. 70 of the CLRA and the test set out in Sherman Estate require courts to protect children’s sensitive information in a way that minimally intrudes on court openness.[^3]

[16] Sherman Estate instructs that to succeed, a party seeking to limit court openness must establish that 1) court openness poses a serious risk to an important public interest; 2) the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and 3), as a matter of proportionality, the benefits of the proposed order outweigh its negative effects: at para. 38. Only where all three prerequisites have been met will a discretionary limit on court openness be properly ordered: Sherman Estate, at para. 38.

(i) Children’s Privacy Is an Important Public Interest

[17] Privacy interests may in some cases constitute an important public interest warranting limits on court openness. Where a breach of privacy amounts to a threat to dignity, revealing aspects of an individual’s “biographical core,” an important public interest will be engaged: Sherman Estate, at paras. 73-75. Information that could give rise to a serious risk to an important public interest may include subjection to sexual assault or harassment or detailed information about family structure: Sherman Estate, at para. 77. Further, a risk to some aspects of privacy may be tied to a risk of psychological harm: Sherman Estate, at para. 54; S.E.L. v. O.V.P., 2022 ONSC 1390, at para. 28. The key question is “whether the information reveals something intimate and personal about the individual, their lifestyle or their experiences”: Sherman Estate, at para. 77.

[18] While the court in Sherman Estate noted, in a non-family law context, the mere fact that some affected individuals may be minors is, without more, insufficient to “cross the seriousness threshold,” it acknowledged that minors are “especially vulnerable to intrusions of privacy”: at para. 92. This inherent vulnerability is confirmed and recognized in multiple legislative contexts across Canada. As stated by Abella J. in A.B. v. Bragg Communications Inc., 2012 SCC 46, [2012] 2 S.C.R. 567, at para. 17:

Recognition of the inherent vulnerability of children has consistent and deep roots in Canadian law. This results in the protection of young people’s privacy under the Criminal Code (s. 486), the Youth Criminal Justice Act (s. 110), and child welfare legislation, not to mention international protections such as the Convention on the Rights of the Child, Can. T.S. 1992 No. 3, all based on age, not on the sensitivity of the particular child … The law attributes the heightened vulnerability based on chronology, not on temperament. [Citations omitted; italics in original.]

[19] Children’s privacy interests attract a higher level of protection than similarly situated adults: see R. v. Jarvis, 2019 SCC 10, [2019] 1 S.C.R. 488, at para. 86. This is often the case in the family law context.[^4]

[20] This court has repeatedly recognized the importance of protecting children’s privacy interests. For example, in Ontario v. Ontario, Benotto J.A. emphasized at paras. 73-75 that children’s privacy rights are grounded in the CRC, which specifically provides at article 40(2)(b)(vii) that the special safeguards for children include the right to have “his or her privacy fully respected at all stages of the proceedings”. She also stated that, “[t]he child’s privacy rights, as with her other rights, are entitled to more, not less protection”: at para. 73. Further, in P1 v. XYZ School, 2022 ONCA 571, van Rensburg J.A. found that there was an important public interest in protecting the privacy of minors in litigation against their school, and that court openness would pose a serious threat to that interest: at para. 44; see also S.E.C. v. M.P., 2023 ONCA 821, at para. 65, leave to appeal to S.C.C. refused, 41121 (August 8, 2024).[^5]

[21] Beyond the dignity interests engaged by privacy, the Supreme Court in Sherman Estate confirmed that the “list” of important public interests that could justify limitations on court openness is not closed, and could include, among other things, “physical safety”: at paras. 41-42, citing R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442, at para. 32, and Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, [2002] 2 S.C.R. 522, at para. 53. Kasirer J. also noted that the public interest in physical safety is not seriously debatable, stating: “[t]he administration of justice suffers when the operation of courts threatens physical well-being because a responsible court system is attuned to the physical harm it inflicts on individuals and works to avoid such effects”: at para. 72. Whether such serious risk exists must be examined on the facts of the case: Sherman Estate, at para. 85.

(ii) The Extent of the Restrictions

[22] A court considering imposing restrictions on openness must determine whether the order requested is necessary to prevent the serious risk identified, because alternative measures that would infringe less on open courts will not prevent the risk: Sherman Estate, at para. 104; Sierra Club, at para. 53. Measures sought could include a complete or partial sealing order, temporary or permanent publication ban, initialization, redaction of identifying information, anonymization, or some combination thereof. In Bragg, a case involving a young person alleging cyber-bullying, the Supreme Court recognized at para. 28, the “relative insignificance of knowing a party’s identity”, citing Binnie J. in F.N. (Re), 2000 SCC 35, [2000] 1 S.C.R. 880, where he referenced identity as a “sliver of information”.

[23] Orders prohibiting identity disclosure, such as initialization or anonymization, do not prevent the media from being present at the hearing and reporting on the facts of the case and the conduct of the trial: Bragg, at para. 28, citing Canadian Newspapers Co. v. Canada (Attorney General), [1988] 2 S.C.R. 122, at p. 133. The press, in other words, retains the ability to inform the public, with minimal impact on the public’s access to information. By contrast, sealing orders intrude much further on the open court principle, placing greater limits on the ability to report on the court proceeding. Accordingly, they are considered an exceptional measure: Sherman Estate, at para. 32.[^6]

[24] The onus is on the person seeking to restrict court openness to show that the benefits of the order they seek outweigh the deleterious effects. That balancing is of course fact-specific. In undertaking the balancing inquiry, the court must consider whether the information sought to be protected is peripheral or central to the judicial process. The greater the centrality of the information sought to be protected, the higher the interest in ensuring that important and legally relevant information is open to the public: Sherman Estate, at para. 106; M.A.B., at para. 30.

(3) Notice to the Media

[25] As a matter of practice, the court should always consider whether notice should be given to the parties, the media and other directly affected individuals before implementing any measure that would limit court openness. This practice provides those affected with an opportunity to make submissions on the issue. The hearing judge ultimately has the discretion to decide whether such notice is required, and if it is, when the notice should be given: Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, at p. 837.

[26] In this case, the original request to this court for confidentiality orders was adjourned to allow for notice to the media.

B. Application to this Case

[27] This case involves serious allegations of violence between the parents and against a child. These allegations are set out in detail in the materials before the court. Deeply intimate and personal details of this child’s views, preferences and experiences are also in the record and summarized in the decision below. The child fears for her physical safety if information identifying her is made public. In my view, this is sufficient to pose a serious risk to the important public interest of protecting a vulnerable child’s sensitive information.

[28] The IRB’s decision finding the child to be a Convention refugee and the IRB file is confidential by virtue of s.166(c) of the IRPA.

[29] Applying the applicable legislation and the principles set out in Sherman Estate, restrictions to protect this child’s privacy and the confidential nature of the IRB file and decision are appropriate. Protecting this information would not prevent the media from attending the court proceeding, reporting on non-identifying, non-confidential aspects of the case, and informing the public about them. It is unnecessary to seal the file in its entirety.

[30] Accordingly, I order as follows:

a. The names of the parties, the subject child, and members of the subject child’s family shall be anonymized. This matter shall be identified by the randomly generated names “Kirby v. Woods”.

b. No person shall publish or make public information that has the effect of identifying the parties or the child who is the subject of this proceeding.

c. Any document in the court record created pursuant to the IRPA, including but not limited to written decisions of the IRB, shall be sealed. Access to this portion of the file shall be limited to the court and authorized court employees, the parties and their counsel, and the OCL.

d. Any request for access to the remaining unsealed court record under s. 137(1) of the CJA shall be made on notice to the parties in accordance with s. 1.3 of the Family Law Rules. The parties may at that time submit redacted versions of the court documents in which any information that has the effect of identifying the child has been removed. This applies to a request for access to this court’s unsealed court record. If the parties disagree about what constitutes “information that has the effect of identifying the child”, they may bring a motion before me to resolve the dispute. Any person who has gained, or gains in the future, access to unredacted copies of any document in the court record shall treat the unredacted records as confidential and shall not share the documents or information in them in any format.

C. Costs

[31] Costs of this motion are reserved to the panel hearing of the appeal.

“L. Madsen J.A.”

[^1]: I refer to the appellant, who is also the moving party, as “Parent 1” and the respondent, who is also the respondent on the motion, as “Parent 2”. The names “Kirby” and “Woods” in the title of proceedings were generated by an online random last name generator. In this way, the case is anonymized for the protection of the child, whilst the case name remains memorable for purposes of precedent.

[^2]: I note that on a challenge to a comparable section of predecessor legislation to the IRPA, the Federal Court of Appeal recognized that “the very purpose of the legislative provision [protecting the confidentiality of the refugee process] was to prevent access to immigration inquiries by the press and the public to enable Convention refugees to speak freely of their experiences, without danger of the reprisals from those from whom they have fled”: see: Pacific Press Ltd. v. Canada (Minister of Employment and Immigration), [1991] 2 F.C. 327, at p. 337. The court also recognized documentary evidence provided by the government showing other democratic countries’ general awareness of the need for confidentiality in the processing of Convention refugee claims: at p. 346.

[^3]: A review of cases involving restrictions on access in the family law context, including many cited within this decision, reveals that in family law disputes involving children, requested anonymization or initialization orders are frequently granted. Sealing orders are only exceptionally granted.

[^4]: See M.A.B. v. M.G.C., 2022 ONSC 7207, at para. 31, where Chappel J. noted that unlike adults, children are often involuntary participants in the family court process. See also S.E.L., at paras. 39-51, where Mitrow J. summarized numerous family law cases in which confidentiality protections were put in place to protect the privacy of children: K(M.S.) v. T.(T.L.) 2003 CarswellOnt 9517 (Ont. C.A.); C.M.G. v. R.G., 2012 ONSC 2496; W.W. v. X.X., 2013 ONSC 929; G.M. v. R.M., 2015 ONSC 4026; L.C.F. v. G.F., 2016 ONSC 6732; B.C.P. and L.P. v. A.R.P., 2016 ONSC 4518; and M.M. v. N.M, 2018 ONSC 6939.

[^5]: Courts in other provinces have also recognized the protection of children’s privacy as an important public interest. See e.g., M.B.H. v. C.K.I., 2023 ABKB 284, at para. 102; G.X. v. Yukon (Government of), 2023 YKSC 10, at paras. 14-19; A.J.K. v. J.P.B., 2022 MBQB 43, at paras. 29-30.

[^6]: See e.g.: G.M. v. R.M., 2015; L.C.F. v. G.F., 2016 ONSC 6732, at para. 50; M.M. v. N.M., 2018 ONSC 6939, at para. 21.