CITATION: B v. G, 2025 ONSC 6347
DIVISIONAL COURT FILE NO.: 327/25
DATE: 20251118
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Backhouse, Matheson, Shore JJ.
BETWEEN:
Harold Niman, Erin Crawford and Stephanie Garbe, for the Appellant
Julie K. Hannaford, Melanie Battaglia and Angela Pagano, for the Respondent
FATHER G
Appellant
– and –
MOTHER B
Respondent
HEARD: May 22, 2025, followed by written submissions
PUBLICATION BAN:
A non-publication order in this proceeding has been issued having regard for the considerations outlined by the Supreme Court of Canada in [Dagenais v. Canadian Broadcasting Corp., 1994) 1994 39 (SCC), 3 S.C.R. 835, prohibiting the publication of:
a) any evidence or information that may identify the children, including their names, dates of birth, address(es), school(s), genders, images, or voices, but not including their ages or initials; and,
b) any evidence or information that may identify the parties, including their names, voices, and images, but not including their genders or initials.
REASONS FOR DECISION
SHORE J.:
[1] The father appeals the order of Justice Diamond (the "motion judge"), dated April 7, 2025, denying the father's request for an order sealing the file of the parties' underlying family law proceedings and a publication ban and/or alternate protective relief(the "Decision"), under s. 70 of the Children's Law Reform Act, R.S.O. 1990, c. C.12 ("CLRA") and s. 137(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43 ("CJA").
[2] In light of the Court of Appeal decision in Kirby v. Woods, 2025 ONCA 437, 17 R.F.L. (9th) 325, released after the hearing of the appeal, the parties were asked to file additional submissions. These submissions have also been considered.
[3] For the reasons below, the appeal is granted, with costs payable to the Appellant, by the Respondent.
Procedural Background:
[4] The father is a high-profile public figure, who primarily resides in Ontario.
[5] The parties were never married and have one young child together, ("A").
[6] In 2018, the parties entered into a Parenting Agreement and a Confidentiality Agreement. The Confidentiality Agreement was intended to protect A from unwanted attention, exploitation, and possible harm.
[7] At a later date, the mother and A moved to Ontario.
[8] In 2024, the mother commenced the underlying family law proceeding to address various financial and parenting issues.
[9] The mother brought an ex parte motion seeking a sealing order, a publication ban, and an order initializing the title of proceedings. She did so on the basis that this was a high conflict matter and that she and A had experienced a significant degree of control and danger while residing in Ontario.
[10] The mother's ex parte motion was granted by the motion judge on November 4, 2024. However, before the motion could return for the father's participation, the mother withdrew her request for a sealing order because she alleged that the father unilaterally told A about the proceeding rendering the sealing order pointless. The mother also submitted that the father intended to use the proposed confidentiality not to shield A from harm, but to "shield himself from any public scrutiny or consequences arising from his behaviour".
[11] Once the mother withdrew her request, the father brought his own motion for a sealing order and publication ban. He submitted the sealing order was necessary as the proceeding contained sensitive information about A and damning allegations of coercive control which, if exposed, would cause A psychological harm. In the alternative, he requested alternative forms of protective relief including anonymization, initialization, partial sealing and/or partial redaction.
[12] The motion judge denied the father's motion on April 7, 2025, concluding that A's circumstances did not overcome the strong presumption in favour of the open court principle as set out in Sherman Estate v. Donovan, 2021 SCC 25, [2021] 2 S.C.R. 75.
[13] In April 2025, the father moved in the Court of Appeal for a stay pending appeal of the motion judge's order. Peppall J. granted a stay of the motion judge's order and scheduled the mother's motion to quash and the hearing of the appeal to be heard together in April 2025.
[14] The Court of Appeal determined that the motion judge's order was interlocutory and therefore the appeal lay to the Divisional Court with leave. Therefore, the appeal brought in the Court of Appeal was not heard. These proceedings were commenced in the Divisional Court.
[15] The Divisional Court granted the father's motion for leave to appeal at the commencement of the hearing and then proceeded to hear the appeal. The parties agreed to an order for a stay of the motion judge's decision lifting the sealing order, pending release of this decision.
[16] The media was given notice of the appeal. No media outlets attended the hearing.
The Motion Judge's Decision:
[17] In 2021, the Supreme Court of Canada released its decision in Sherman Estate, which established three pre-requisites that must be satisfied in order for courts to exercise their narrow discretion to restrict the open court principle, provided for in s.137(2) of the CJA:
(a) As a threshold requirement, a moving party must demonstrate that the open court principle presents a serious risk to a competing interest of public importance.
(b) The moving party must further show that the discretionary order sought is necessary to protect that serious risk because reasonably alternative measures would not; and,
(c) The moving party must demonstrate that as a matter of proportionality, the benefits of the discretionary order outweigh its negative effects.
[18] The motion judge proceeded to apply the three-prong test to this case.
[19] With respect to the first requirement, the motion judge found that the father clearly identified a "competing interest of public importance", in the court's common law and statutory obligation (under s. 70 of the CLRA) to protect the inherent vulnerability of children. He found that the father therefore "meets the first constitutional pre-requisite for identifying a serious public interest".
[20] In order to satisfy the second requirement, the motion judge noted that there must be sufficient, compelling evidence to conclude that there is a serious risk of harm to A which "goes well beyond the typical impact of parental separation upon children of a marriage/relationship." While the court is permitted to assess discernible risk to the child based on logical inferences, this is not licence to engage in impermissible speculation.
[21] Having set out the applicable framework, the motion judge considered several cases where courts have granted a partial or full sealing order in matters involving children. However, he distinguished these cases as they involved exceptional issues such as parentage applications, sexual abuse, and kidnapping. While the motion judge acknowledged that A may be struggling with their parents' separation, he observed that there was nothing before the court that approached the types of concerns arising in parentage applications, sexual abuse, or kidnapping cases, that would anchor a finding of risk of harm and noted the absence of medical evidence.
[22] The motion judge therefore found that the allegations against the father and the sensitive information about A were not exceptional circumstances justifying the order. Rather, the only true distinguishing factor was the father's high-profile public status, which, under Sherman Estate, was not recognized as a contributing factor governing the pre-requisites. As such, he rendered the Decision, dismissing the father's motion for a sealing order and publication ban.
Issues on Appeal:
[23] The Appellant raised the following issues on appeal:
(a) Did the motion judge err in law by failing to consider the overarching legal tests and principles, namely the best interests of the child, the court's parens patriae jurisdiction, Rule 1.3 of the Family Law Rules, O Reg 114/99, s. 70(2) of the CLRA, and the United Nations Convention on the Rights of the Child, 1989, Can TS 1992 No 3.
(b) Did the motion judge err in law by misapplying the legal test set out in Sherman Estate, by:
(i) not considering the dissemination of information as being pivotal to the granting of a sealing order, specifically with respect to the second prerequisite under stage one of the Sherman Estate analysis;
(ii) failing to sufficiently distinguish Sherman Estate from the present case in which the relief sought relates solely to the parties' young child; and,
(iii) failing to recognize that the court's discretion to restrict court openness in Sherman Estate originated from s. 137 of the CJA, rather than s. 70 of the CLRA?
(c) Did the motion judge err by not addressing lesser forms of protective relief that the Appellant sought on his motion (such as anonymization, initialization, partial sealing and/or partial redaction) and dismissing the Appellant's request for protective measures in their entirety?
(d) Did the motion judge error in determining that a sealing order was not necessary to protect against a serious risk to an important public interest engaged in this case, namely the privacy and physical safety of the child, A, specifically:
(i) by placing insufficient or undue weight on elements of this particular case;
(ii) by insufficiently considering the individual privacy interests of the child, separate and apart from the parties;
(iii) by distinguishing this case from other cases rather than focusing on the unique circumstances of this case; and,
(iv) by comparing this child to other children and in doing so minimizing the risk of harm to this child as opposed to considering the legal principles set out in the relevant jurisprudence that should be applied in cases involving and impacting children?
[24] The first two issues raised can be combined and synthesized as follows: What test should be applied in determining whether to grant a sealing order under s.70 of the CLRA, and was the correct test applied by the motion judge? If the correct test was applied, was there a palpable and overriding error in applying the test to the facts of this case?
Standard of Review:
[25] The standard of review for a judicial appeal is set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 8, 10. On questions of law, the standard is correctness. On questions of fact, the standard is palpable and overriding error. On questions of mixed fact and law, extricable legal principles are subject to correctness and the application of the correct legal principles to the evidence is subject to the standard of review of palpable and overriding error.
Analysis:
The Legal Framework:
[26] Canadian courts have repeatedly emphasized the fundamental importance of the open court principle, which is inextricably tied to s.2(b) of the Charter right to freedom of expression. Sherman Estate, sets out a three part-test to determine whether to grant a sealing order under s.137 of the CJA. The court in Sherman Estate stated that "the test applies to all discretionary limits on court openness, subject only to valid legislative enactments." [emphasis added]: para. 38.
[27] The case before this court involves a valid legislative enactment. Section 70 of the CLRA provides a framework for assessing whether a limit on court openness is appropriate in the context of parenting cases. The section indicates the legislature's intent to protect children from harm in parenting cases that focus on them.
[28] The starting point for this analysis is the interplay between s.70 of the CLRA and the Supreme Court of Canada's decision in Sherman Estate.
[29] Section 70 of the CLRA provides:
(1) Where a proceeding includes an application under this Part, the court shall consider whether it is appropriate to order,
(a) that access to all or part of the court file be limited to,
(i) the court and authorized court employees,
(ii) the parties and their counsel,
(iii) counsel, if any, representing the child who is the subject of the application, and
(iv) any other person that the court may specify; or
(b) that no person shall publish or make public information that has the effect of identifying any person referred to in any document relating to the application that appears in the court file. 2009, c. 11, s. 18.
(2) In determining whether to make an order under subsection (1), the court shall consider,
(a) the nature and sensitivity of the information contained in the documents relating to the application under this Part that appear in the court file; and
(b) whether not making the order could cause physical, mental or emotional harm to any person referred to in those documents. 2009, c. 11, s. 18.
[30] In the recent Court of Appeal decision, which was released after the Decision, Kirby v. Woods, 2025 ONCA 437, 17 R.F.L. (9th) 325, Madsen J.A. provided guidance on the relationship between s.70 of the CLRA and the Sherman Estate test. Starting at paragraph 11, Madsen J. A. states:
[11]… 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. [emphasis added]
[31] Madsen J.A. continues to consider the effect of the Sherman Estate decision on s.70, as follows:
[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. (emphasis added)
[32] In both Kirby and Sherman Estate, the courts recognize that children are among the most vulnerable members of our society, and whenever a child is affected by a court process, the primary consideration must be the best interests of the child: see Kirby at para. 9 and Sherman Estate at para. 92. As set out in Kirby:
[18]…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, R.S.C. 1985, c. C-46 (s. 486), the Youth Criminal Justice Act, S.C. 2002, c.1 (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.
[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 [Convention on the Rights of the Child], 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).
[33] Therefore, s.70 informs the exercise of discretion under s.137. It is not superseded by the Sherman Estate test. When dealing with a request involving a child under s.70 of the CLRA, the application of s.137 of the CJA, and thus the Sherman Estate test, is affected by the mandatory considerations set out in s.70(2) of the CLRA.
[34] The very fact that the legislature enacted s.70, when s. 137 already existed and was available to family law litigants, indicates the legislature's intent for s. 70 to modify the Sherman Estate test. Further, the Sherman Estate case did not involve children.
[35] This approach is consistent with Justice Myers's decision in Danso v. Bartley, 2018 ONSC 4929, 13 R.F.L. (8th) 341, although that case was decided prior to Sherman Estate and therefore refers to the test as set out in Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, [2002] 2 S.C.R. 522:
[34] Even if the terms of s. 70 of the CLRA are met, prior to ordering a sealing of the file or a publication ban under that section, the court is required to consider the balancing of interests mandated in Sierra Club. However, s. 70 provides an important context for applying the constitutional balancing. That is, the legislation shows a heightened awareness and sensitivity to the risks of harm in cases involving children. In balancing the risks of harm of publicity against the possible negative effects of a publication ban, the court should put extra emphasis on the public interest in protecting children and scrutinize closely claims that there is a real public interest in publication of the details of such claims. [emphasis added]
[36] The three-part test in Sherman Estate provides that a party seeking to limit court openness must establish that:
(a) court openness presents a serious risk to a competing interest of public importance;
(b) the discretionary order sought is necessary to prevent that serious risk because reasonably alternative measures would not; and
(c) as a matter of proportionality, the benefits of the proposed order outweigh its negative effects: at para. 38.
[37] When seeking an order under s.70 of the CLRA, the first part of the Sherman Estate test will likely be satisfied. This is because children's privacy is an important public interest: Kirby, at para. 20.
[38] Section 70(2) modifies the second part of the Sherman Estate test. The court must consider the nature and sensitivity of the information in the court documents in parenting related cases and consider whether not making the order could cause physical, mental or emotional harm to a child.
[39] Likewise, when considering the third part of the Sherman Estate test, the court must also consider the factors in s.70(2), ensuring that the special nature of parenting cases is at the forefront of the court's considerations.
[40] Having outlined the test, the court must consider whether the motion judge applied the correct test and then whether it was applied correctly to the facts.
Did the motion judge apply the correct test?
[41] With respect to the first part of the test, the motion judge applied the correct test and found that the first part was met. As set out in paragraph 38 of the decision:
I have no difficulty finding that the first pre-requisite is met on the record before this Court. There is both a statutory and common law obligation placed squarely upon the Court to protect the inherent vulnerability of a minor child. That over-arching duty is in fact "baked into" the CLRA, and in particular section 70 (found in Part III dealing with, inter alia, decision-making responsibility and parenting time)…
Error in law: Failure to consider alternate measures:
[42] In considering the second part of the test, I find that the motion judge erred by failing to consider alternative protective measures that might better balance protecting the child and respecting the importance of open courts.
[43] As set out at para. 29 of Kirby:
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.
[44] Alternative measures could include a complete or partial sealing order, temporary or permanent publication ban, initialization, redaction of identifying information, anonymization, or some combination thereof as may be appropriate in a specific case.
[45] There was some discussion during the appeal hearing regarding r.1.3 of the Family Law Rules. The Family Law Rules were recently amended to include r.1.3, which provides that parties are entitled to at least 10-days notice when a third-party requests access to a court file containing claims with respect to parenting orders or in international child abduction cases. I accept that r.1.3 does not provide sufficient privacy protection in this case because it allows access to a person authorized in writing by a party or their lawyer and does not provide protection for any orders published. However, it is an example where the open court principle has been curtailed somewhat to protect the best interest of children.
[46] At paragraph 15 in Kirby, Madsen J.A. finds that 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."
[47] I find the motion judge made an error in law by failing to consider whether a lesser remedy would suffice, and instead dismissed the motion in its entirety. On this ground alone, I would grant the appeal.
Palpable and overriding error of fact: in finding no evidence of harm to the child
[48] In applying the second part of the Sherman Estate test to the facts of this case, I find the motion judge made a palpable and overriding error of fact, in finding that there was no evidence of harm to the child above the typical impact of parental separation upon children of a marriage/relationship.
[49] In considering the evidence before the court, para. 97 in Sherman Estate provides that:
At the outset, I note that direct evidence is not necessarily required to establish a serious risk to an important interest. This Court has held that it is possible to identify objectively discernable harm on the basis of logical inferences (Bragg, at paras. 15 16). But this process of inferential reasoning is not a licence to engage in impermissible speculation. An inference must still be grounded in objective circumstantial facts that reasonably allow the finding to be made inferentially. Where the inference cannot reasonably be drawn from the circumstances, it amounts to speculation.
[50] In A.B. v. Bragg Communications Inc., 2012 SCC 46, [2012] 2 S.C.R. 567, at para. 26, the court states:
Studies have confirmed that allowing the names of child victims and other identifying information to appear in the media can exacerbate trauma, complicate recovery, discourage future disclosures, and inhibit cooperation with authorities.
[51] I find that the motion judge erred in finding that the risk to A was merely speculative because it was unsupported by expert or medical evidence. No such evidence is required. As the Supreme Court confirmed in Sherman Estate at para. 103, "applicants do not necessarily need to retain experts who will attest to the physical or psychological risk related to the disclosure."
[52] In any event, I find that there was sufficient evidence on the motion to conclude that there is serious risk of harm to this child, including:
(a) Although the mother's position subsequently changed, in each of the parties' initial motion materials, the parties emphasized the potential emotional harm to the child, should the proceedings attract public attention. The mother stated as follows: "I have made several claims in my pleadings arising from the Respondent's inflicted cruelty and abuse towards me. A would suffer significant emotional and/or mental harm if [they] became aware of the claims currently before the court." At paragraph 7 of the mother's affidavit dated October 30, 2024, she states:
This court proceeding concerns the best interests of A, and inevitably has resulted in the private and intimate details of our lives becoming court record. Given the immense public interest in all aspects of the Respondent's personal and professional life (including public interest in A who the Applicant insists on posting publicly about), a confidentiality Order is necessary to safeguard A's privacy and best interests.
(b) Both parties gave evidence that the child started to show signs of distress, angst and anger since late 2024.
(c) The child has been acting out at home and at school.
(d) The child is attending therapy.
(e) The child has a dedicated team of security guards that accompany the child to both school and extra-curricular activities.
(f) The father is involved in a dispute which has caused additional danger to A.
(g) The mother and child had to relocate from Toronto temporarily out of concern for their own safety as a result of a violent act.
(h) There is little doubt that there is significant risk that this proceeding could be widely publicized given the party's level of fame and that any such publicity could likely have a direct effect on the child's life: see para. 44 of the Decision.
(i) At paragraph 29 of her affidavit, the mother states that A "is entitled to privacy and dignity, which exceeds any right of the public for information concerning this legal proceeding".
[53] It is not typical for a child to have to go to school with security. It is not typical for a child to be chased by media or to have their every move scrutinized by the media. This is not about the effect on the parents, but on the child. The child did not choose this.
[54] The facts above show that the wide dissemination of sensitive and intimate information presents a serious threat to A's emotional, mental and physical well-being.
[55] However, those threats can be addressed by redacting any identifying information in the court record. Sealing the entire file is not necessary in this case if identifying information about the parties and the child is redacted and cannot be made public.
[56] In my view, a partial sealing order for anonymization as well as a ban on publicizing any identifying information will protect the child's identity and minimize or mitigate the harm to which the public attention in this proceeding would otherwise cause. At the same time, it will balance the rights and interests of the parties and the public, including the open court principle.
[57] Section 21 of the CJA permits a panel of the Divisional Court to set aside or vary the decision of a judge who hears and determines a motion.
[58] I find this is an appropriate case to order a partial sealing order requiring the redaction of all identifying information from the court documents in the public court file and publication ban. I am satisfied that not making the order could cause physical, mental or emotional harm to A.
Costs:
[59] The parties agreed that costs of $17,500 all inclusive, including the leave motion, would be paid to the successful party.
Disposition:
[60] This Court orders that:
(a) The appeal is granted.
(b) The decision of the motion judge is set aside.
(c) There shall be a publication ban with respect to any identifying information relating to the child, including but not limited to their name, date of birth, address(es), school(s), genders, images, or voices.
(d) There shall be a publication ban with respect to any identifying information relating to the parties, including but not limited to their names, voices and images.
(e) The title of proceedings shall continue to be Mother B for the Appellant and Father G for the Respondent.
(f) Any decisions, orders or other documents made public in this proceeding shall refer to the parties and the child as Mother B, Father G and A, respectively.
(g) All court documents shall be redacted to remove any identifying information from the public version of the court documents;
(h) The redacted court documents shall be publicly available and the unredacted court documents shall remain sealed;
(i) Any person who has gained access to the court file is prohibited from communicating to any other person the identity of the parties, the child, or any information that has the effect or could have the effect of identifying the parties or their children.
(j) The Respondent shall pay the Appellant costs in the sum of $17,500, inclusive.
[61] The parties shall discuss the form of the above order and submit a draft formal order to the court with brief submissions indicating any areas of disagreement with two weeks from today.
Shore J.
I agree
Backhouse J.
I agree
Matheson J.
Released: November 18, 2025
CITATION: B v. G, 2025 ONSC 6347
DIVISIONAL COURT FILE NO.: 327/25 ML
DATE: 20251118
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Backhouse, Matheson, Shore JJ.
BETWEEN:
Mother G
Appellant
– and –
Father B
Respondent
REASONS FOR JUDGMENT
Shore J.
Released: November 18, 2025