DATE: 20030207
DOCKET: C38858
COURT OF APPEAL FOR ONTARIO
CATZMAN, WEILER and MOLDAVER JJ.A.
B E T W E E N:
M.S.K.
Stephen Grant and Harold Niman, for the appellant
Sheila Block and Sarah Wright, for the appellant intervenor
Plaintiff (Respondent)
- and -
T.L.T.
Barbara Puckering, for the respondent
Defendant (Appellant)
Heard: January 17, 2003
Released Orally: January 17, 2003
On appeal from the order of Justice Frances P. Kiteley of the Superior Court of Justice dated September 18, 2002.
BY THE COURT:
[1] The appellant appeals from the order of Kiteley J. dated September 18, 2002, denying the appellant’s request to seal the entire court file in this action and instead, ordering that certain parts of the file be expunged.
[2] The appellant and the respondent are the parents of MT, born July 12, 1999. The respondent began this action on February 13, 2002 to determine the parties’ parenting regime and resolve certain financial issues. Subsequently, by agreement, the parties submitted these issues to arbitration. The arbitration award was incorporated into a judgment of Kiteley J. on July 22, 2002.
[3] The appellant is from a wealthy and well-known family. She made a motion before Ferrier J. at the outset of the proceedings to seal the court file under s. 137(2) of the Courts of Justice Act in an effort to ensure MT’s safety and security. This motion was not opposed by the respondent, and was granted by Ferrier J. on an interim basis.
[4] The appellant’s motion for a final order to seal the file was heard on September 4, 2002 before Kiteley J., who also heard from intervenor counsel for the appellant in the related but discrete action brought by the appellant against her former nanny for breach of a confidentiality agreement. At this point the respondent opposed the motion to seal the file. Kiteley J. denied the request to seal the file. Instead, she expunged certain portions. Since the order of Kiteley J., the action against the former nanny has been settled on the basis that the confidentiality of MT will be permanently protected and the action has been dismissed without costs.
[5] Kiteley J. found that there was an appreciable risk of harm to the child by kidnapping if the information respecting the child were left in the public domain. She put it this way at page 9 of her reasons:
I see the responsibility of the court to ensure that a court file which was created to protect the child’s best interests does not become the instrument to harm her.
[6] She was of the opinion, however, that if specific information was expunged, the risk of harm would be eliminated while information that had no bearing on the potential harm to the child would remain and preserve the social value of openness.
[7] The appellant submits that the portions of the file remaining after the information is expunged nevertheless continue to present a threat to the child’s well-being because, for example, the movements of the child will be known. The appellant submits that, in order to eliminate the threat of kidnapping posed by the court proceedings, it is necessary to seal the entire file. The evidence of one of the experts whose affidavit was filed before Kiteley J. supports this conclusion.
[8] The appellant intervenor submits that to the extent the record is not sealed it undermines the settlement in that action. In that action the nanny agreed that the confidential information be protected from being permanently disclosed and the action was dismissed. The appellant intervenor submits that, although this court is not bound by the settlement in the previous action, this is a further factor for the court’s consideration.
[9] The respondent submits that openness is necessary to protect the child’s right of access to her father. The respondent is concerned that the mechanism to ensure accountability or enforcement of the order respecting access will be impaired if the information is sealed.
[10] In our opinion, having regard to Kiteley J.’s finding of the risk of potential harm to the child, the best interests of the child in this case require that an exception be made to the general rule in favour of the openness of the court under the authority of s. 137(2) of the Courts of Justice Act and that the entire file be sealed.
[11] We do not agree with the respondent’s submission that openness is necessary to protect the child’s access to her father. Nothing prevents the father from coming back to the court, if necessary, to enforce the access agreement reached. Any order of the court sealing information is subject to unsealing in whole or in part in a later proceeding if that information bears on the relief being sought. We stress that, contrary to the submission of the respondent, the sealing order is not made because the child belongs to a wealthy family or because there is a confidentiality agreement. Rather, the order is made because we consider it to be in the best interests of the child. We expressly refrain from addressing the issue on the basis of the confidentiality agreement or the action that was brought to enforce it.
[12] We would therefore allow the appeal from the order of Kiteley J., set aside her order and its place substitute an order that the entire file relating to this proceeding be sealed.
[13] We are of the opinion that each of the parties should bear his or her own costs of this appeal and of the proceeding before Kiteley J.
Released: Feb. 7, 2003
“M.A.C”
“M.A. Catzman J.A.”
“Karen M. Weiler J.A.”
“M.J. Moldaver J.A.”