SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FC-12-176
DATE: 20120426
RE: C.M.G. v. R.G.
BEFORE: J. Mackinnon J
COUNSEL:
Harold Niman/Daryl Gelgoot, for the Applicant
Michael Rankin, for the Respondent
DATE HEARD: April 12, 2012
E N D O R S E M E N T
[ 1 ] The Applicant moves with the consent of the Respondent for an order pursuant to s. 137(2) of the Courts of Justice Act sealing this file and identifying the parties and the children by their initials. On December 21, 2011, I made a preliminary order permitting the use of initials and sealing the materials of the proposed motion pending determination of this motion.
[ 2 ] The basis of the motion is the risk of potential harm to the parties’ children given their particularly vulnerable state, the high profile of the family and the nature of the intended proceedings. Counsel relies principally on the decision of the Ontario Court of Appeal in M.S.K. v. T.L.T , (2003) 2003 27471 (ON CA) , 168 O.A.C. 73 (C.A.), [2003] O.J. No. 352. [1] The issues in that case were the terms of the parenting regime and certain financial issues. The mother of the child came from an extremely wealthy and well-known family. She sought to have the matrimonial court file sealed in order to ensure her daughter’s safety. The Ontario Court of Appeal found that given the risk of potential harm to the child, her best interests required that an exception be made to the general rule in favour of openness and ordered the entire court file sealed. The Court stressed at para. 11 that the order was made because it was in the child’s best interests.
[ 3 ] The identification of the issues by the motion judge in M.S.K. is applicable to the case at bar:
23 There is a strong public policy in favour of openness. Public confidence in the integrity of the court system and the public's understanding of the administration of justice are fostered by openness: Nova Scotia (Attorney General) v. MacIntyre, 1982 14 (SCC) , [1982] 1 S.C.R. 175, 132 D.L.R. (3d) 385. Exceptions to this public policy are only justified where it is necessary to protect social values of superordinate importance: MacIntyre, at pp. 186-87 S.C.R., p. 403 D.L.R.; Canadian Newspapers Co. v. Canada (Attorney General) (1985), 1985 156 (ON CA) , 49 O.R. (2d) 557, 16 D.L.R. (4th) 642 (C.A.); Towers, Perrin v. Cantin (2000), 2000 22695 (ON SC) , 50 O.R. (3d) 476 paragraph 6 .
24 I accept that courts ought to ensure that children who are the subject matter of legal proceedings not be harmed by virtue of being the focus of such litigation. I accept that the protection of children in such circumstances is a "social value of superordinate importance". The principle of public access to court proceedings and documents is also a "social value of superordinate importance". Where, as is the case here, those social values are in conflict, the protection of children probably trumps public access, bearing in mind that openness and transparency may sometimes be so crucial to the protection of children that openness prevails. In its parens patriae role, the court must be diligent in preventing children from being harmed by virtue of the consequences of one of the parents seeking the intervention of the court.
25 The complicating factors are these. First, to what extent does the litigation itself (as opposed to the wealth of the parent) create actual or potential harm to the child? And second, if the litigation does enhance the risk of harm, is there a method other than sealing the entire court file by which that enhancement of risk can be eliminated?
[ 4 ] Given the family wealth and public profile, the motion judge in M.S.K. accepted evidence that the child could be at risk of harm through abduction. She stated at para. 22:
22 I accept that because she has a very wealthy parent, this child is at risk from those in society who might use that wealth for nefarious purposes. I accept that the greater the wealth, the more the interest in the parent and the child by representatives of the media and by those members of society who might use it to harm the child. I accept that the more information that is publicly available about the child and her environment, the greater the risk of harm to her.
[ 5 ] The motion judge granted a limited order which would have redacted certain portions of the file. The appeal from that order was allowed and the Court of Appeal held that the entire file should be sealed. In so doing, the Court noted that the evidence of one of the experts whose affidavit was filed before the motion judge supported the conclusion that, to eliminate the threat of kidnapping posed by the court proceedings, it was necessary to seal the entire file.
[ 6 ] It is not clear to me what the financial issues were in M.S.K. It was noted by the motion judge that no financial statement by the mother was required such that there was no need to protect documents that might disclose the extent of her wealth. Her wealth had a direct bearing on the risk to the child, which is not the case here. The cases are similar however in that in both the wealth and profile of the family in the community make media attention more likely.
[ 7 ] The Ontario Court of Appeal has recently addressed the importance of the evidentiary record on a motion for a confidentiality order. In M.E.H. v. Williams , 2012 ONCA 35 , [2012] O.J. No. 525 , the Court stated at paras. 29 and 30:
29 In my view, it is not necessary that a litigant establish that he or she would not go to court absent the privacy protections requested. Access to the courts should not come at the cost of a substantial risk of serious debilitating emotional or physical harm to the party seeking access. Access to the courts at that cost would be more illusory than real.
30 The distinction between personal emotional distress and embarrassment, which cannot justify limiting publication of or access to court proceedings and records, and serious debilitating physical or emotional harm that goes to the ability of a litigant to access the court is one of degree. Expert medical opinion firmly planted in reliable evidence of the specific circumstances and the condition of the litigant will usually be crucial in drawing that distinction: see Re: John Doe P.A.B.D. #1 , 2005 NLTD 214 , at para. 43 .
[ 8 ] M.E.H. had not deposed an affidavit in support of her motion. Without that, the Appeal Court held that much of her psychiatrist’s opinion was speculation and assumption. There was no evidence to support his characterizations of the media as engaging in an unrelenting and very intrusive invasion of her privacy. The Court held at para. 57: “Consequently, Dr. Quan’s opinion cannot be said to provide the kind of convincing evidence needed to meet the rigorous standard demanded by the necessity branch of the Dagenais Mentuck test.”
[ 9 ] Accordingly, I must consider whether there is convincing evidence that meets the rigorous necessity test. “The necessity branch focuses exclusively on the existence of a serious risk to a public interst that can only be addressed by some form of non-publication or sealing order.” M.E.H. at para. 31 . If that test is met, I may proceed to the second branch of the inquiry where the competing interests must be balanced. At that stage, I must consider whether the order sought is necessary to protect “the social value of superordinate importance” or whether a lessor order would suffice.
[ 10 ] The facts in this case are as follows: R.G. and C.M.G. were married in September 1995. They separated fourteen years later. They have two children, aged 13 and 12, in grade 8 and grade 7 respectively. R.G. and C.M.G. are part of a high profile family in Ottawa. R.G.’s uncle was the city mayor at one time. The parties are prominent members of the local Jewish and business communities and have been involved in many philanthropic endeavors. Members of the family appear frequently in the media, and given the relatively small size of the Ottawa community, they are well known. R.G.’s family company is the biggest builder in the Ottawa region.
[ 11 ] The evidence before the Court shows that both children have struggled emotionally with their parent’s separation. Their pediatrician describes both children as being under stress associated with the separation. The doctor says that the older child has been more affected, leading to periods of anxiety and acting out behaviour. This child is seeing a psychologist on a regular basis and has also received counseling at school.
[ 12 ] The Applicant mother deposes that the older child has recently become fixated on the topic of suicide. This child has focused on the suicides of two young people in Ottawa, one of whom attended the same school. The child’s closest friend has recently left school because of “cutting” and the Applicant describes this and the events leading up to it as having a terrible impact on her own child.
[ 13 ] The younger child is described by the Applicant mother as very nervous and sensitive. He has spent more time on his own since the separation and she fears he is becoming isolated. He is unable to fall asleep on his own, has nightmares and is fearful at night. His behaviour at school has changed drastically since the separation. He has been acting out in school and disrupting class. His marks are declining. He has become violent and aggressive towards his mother and sibling. This is all out of character.
[ 14 ] Both children have also been impacted by the tragic deaths of an uncle and fifteen year old cousin in a car accident in February. The Applicant mother and her younger child were in a following car and came on the scene shortly after the accident. Since then, the younger child has expressed feelings of hopelessness and loss to her.
[ 15 ] C.M.G. fears that the children’s peers may learn about this proceeding and that they may be subjected to embarrassing and potentially damaging situations as a result. She submits that the nature of the pleadings themselves may result in the children being bullied. She believes this is more likely in an age where information travels very quickly through social media sites and on the internet, particularly among young people. C.M.G. believes the children are especially vulnerable to bullying on Facebook. She submits that this is particularly troubling given a recent study by the Canadian Medical Association which she tendered as an exhibit that found that suicide is on the rise among young girls and is currently the second leading cause of death among young Canadians. The Applicant is concerned that the potential publicity generated by this case would be harmful to the children given their heightened vulnerability.
[ 16 ] I am satisfied that this is a case that is likely to attract media attention for reasons in addition to and arising from the prominence of the family in Ottawa. The Applicant attached her intended application as an exhibit to her affidavit. The application seeks to set aside a marriage contract. Some of the grounds pleaded in support of that relief include allegations of misconduct by the Respondent that could be considered salacious and whether true or not could be expected to attract publicity to the case. Custody and access for the children are issues. The proposed application includes allegations that the Respondent engaged in misconduct and activities that one would prefer one’s children not to know about, and that could also be expected to attract publicity because of their nature and his prominence in the community. There is also a claim for exclusive possession of a cottage that relies on some of these same allegations.
[ 17 ] The proposed application also claims support and property division which may be expected to require significant financial disclosure to be made between the parties.
[ 18 ] I am satisfied that the children of this marriage are particularly vulnerable and are at risk of significant emotional harm and negative repercussions arising from a public airing of some of their mother’s claims and their father’s alleged misconduct. I am satisfied that both children are at risk for undue and heightened stress and anxiety going well beyond the usual impact of parental separation on children. This is likely to be compounded should some aspects of their parents’ litigation become known in their community. Protecting the children in such circumstances is a social value of superordinate importance. As stated by the motion judge in M.S.K ., “The responsibility of the court [is] to ensure that a court file which was created to protect the child’s best interests does not become the instrument to harm her.”
[ 19 ] At the second stage of the inquiry, I have not been persuaded that sealing the entire file is necessary to eliminate the risk to the children arising from their mother seeking recourse to the court. This is not a case like M.S.K. where the wealth and financial circumstances of the parent were directly linked to the risk to the child. Here, the prominence and wealth of the parents is likely to result in information becoming publically available. But no risk arises directly from the parents’ financial details in and of themselves as was the case in M.S.K.
[ 20 ] The Applicant relies on the doctor’s report which states in part:
The children are entering their adolescent years and could be significantly harmed by undue publicity surrounding the separation process. Because of their present age any publicity could have a major impact with peer relationships and could predispose them to psychological damage. [C.M.G] informs me that it could be possible for this case to be conducted in a private setting and I would agree that from the children’s standpoint this would be best due to the significant publicity a public process would entail.
The doctor does not address the individual issues in the proposed court case or the type of evidence that may be necessary in order to fully address those issues.
[ 21 ] In my view, the blanket statement about “any publicity” is not persuasive. The doctor does not explain why publicity about the Respondent’s income or business activities would be deleterious to the children. In the absence of a more issue specific analysis from the expert, and having regard to the balance of the record before me, I am nonetheless able to conclude that risk of increased emotional harm is likely to arise from aspects of the factual foundation alleged by the mother in support of some of her claims. These are the portions of the file that relate to the claims to set aside the marriage contract, for exclusive possession of the cottage property, and to the custody and access of the children. These are the sensitive areas that contain evidence the exposure to which poses the enhanced risk to these already vulnerable children.
[ 22 ] For these reasons, I order that the parties and their children be identified by their initials and that the portions of the file relating to the claims to set aside the marriage contract, exclusive possession of the cottage, and custody and access to the children shall be sealed. The motion record should remain sealed for the same reasons relating to the best interests of the children. The public interst in knowing how the needs of the children figured in this decision is satisfied by the release of these reasons.
[ 23 ] No costs were requested and none are ordered.
J. Mackinnon J
RELEASED: April 26, 2012
COURT FILE NO.: FC-12-176
SUPERIOR COURT OF JUSTICE - ONTARIO RE: C.M.G. v. R.G. BEFORE: J. Mackinnon J COUNSEL: Harold Niman/Daryl Gelgoot, for the Applicant Michael Rankin for the Respondent ENDORSEMENT J. Mackinnon J
RELEASED: April 26, 2012
[1] The Court of Appeal decision in M.S.K. has not been referred to subsequently by that Court or by the Supreme Court of Canada.