ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 17412/11
DATE: 20130208
BETWEEN:
W.W.
Applicant
– and –
X.X. and Y.Y.
Respondents
Lucia Mendonca, for the Applicant
Michelle Flowerday, for the Respondent
HEARD: January 29, 2013
DECISION ON NAMING PROTOCOL
hennessy J.:
[1] The issue in dispute is access and a declaration of parentage with respect to a child born following a sperm donation from the applicant. The matter has now been the subject of two motions and a number of case management calls.
[2] Until now, all pleadings and filed documents have included the full name of the applicant and the respondents in the title of proceedings. The child’s full name has also been used in documents filed with the court.
[3] Following a discussion on the matter of privacy, counsel consulted with the parties and now bring a joint request for a four part order to protect the privacy of the child:
i) to amend the title of proceedings to identify the parties by initials only,
ii) to refer to the child by initials,
iii) to prohibit the publication of any information that would have the effect of identifying the child, and
iv) to seal the court file.
[4] Taking into consideration the intimate nature and sensitivity of the information contained in the documents relating to this Application, I am persuaded that an order dealing with each of these points is necessary to protect the best interests of the child. In the absence of an order providing anonymity to this child, the child is at risk of future mental or emotional harm.
[5] Courts in Ontario and other provinces have made similar orders to protect the privacy of a child who is at the centre of an adult dispute. In order to resolve the dispute, the court will hear the most intimate details of the circumstances of the child’s life. There is no purpose served by putting these intimate details into the public domain. To make public the intimate details of this child’s life is a violation of the child’s fundamental right to dignity and privacy.
[6] In A.A. v. B.B. 2003 2139 (ON SC), [2003] O.J. No. 1215 (S.C.J.), the court made an order on consent declaring a third person as a parent. At the same time the court granted two orders which had the effect of protecting the privacy of the child who was the subject of the matter. Essentially the court was satisfied that the order was necessary to protect the privacy of the child and secondly the court was satisfied that the orders would not stifle any public comment or debate on the issues of the case or their implications.
[7] This case is somewhat different from A.A. v. B.B in that there has already been publicity about the dispute and the circumstances surrounding the birth of the child. The court, in R.R. v. O.B. 2006 SKQB 496, [2006] S.J. No 740 (Q.B.) addressed the issue of trying to shield the child from further publicity after the parties and the child had been identified in the media. In making the order to prohibit publication of information which identified the parties or the child the court said: “One day this child will no doubt learn of the controversy surrounding his birth. When he acquires that knowledge is better left to those to whom his care is entrusted as opposed to an untimely comment by a member of the public.” I agree with the reasoning.
[8] In this province, when children are involved in child protection proceedings it is common for the court to order that parties and the children are identified by initials and that access to the court file is restricted. (See s. 70(1) of the Children’s Law Reform Act R.S.O. 1990 c. C-12.)
[9] The goals of the legislature are the same as the principles which guided the courts in both of the above noted cases. I find that it would be in the best interests of the child at the centre of this dispute if an order was granted at this point in time to change the title of the proceedings and prohibit the further publication of any information which would have the effect of identifying the parties or the child. I am also satisfied that such an order would not impair or adversely affect public comment or debate on the issues arising in this case.
[10] Pursuant to subsection 137(2) of the Courts of Justice Act, R.S.O. 1990, c. C-43, order to go on consent that:
i) No person shall publish or make public information that has the effect of identifying the child or the parties.
ii) The title of proceedings shall be amended to use initials to identify the parties and the child. The applicant shall be referred to as W.W., the original respondent shall be referred to as X.X., the added respondent shall be referred to as Y.Y. and the child shall be referred to as Z.Z.
iii) 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 relatives of the child or any information that has the effect of identifying the parties or the child or relatives of the child.
iv) Any document in the court file created or filed before the date of this order shall be sealed and not form part of the public record. Access to the sealed documents shall be limited to:
a) the court and authorized court employees,
b) the parties and their counsel, and
c) any other person the court may specify.
Madam Justice Patricia C. Hennessy
Released: February 8, 2013
COURT FILE NO.: 17412/11
DATE: 20130208
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
W.W.
Applicant
and
X.X. and Y.Y.
Respondents
DECISION IN NAMING PROTOCOL
Hennessy J.
Released: February 8, 2013