G.M. v. R.M., 2015 ONSC 4026

CITATION: G.M. v. R.M., 2015 ONSC 4026

COURT FILE NO.: 35629/13

DATE: 2015-06-22

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: G.M., Applicant

AND:

R.M., Respondent

BEFORE: Gray J.

COUNSEL: Robert McQueen, Counsel for the Applicant

Geoffrey J. Carpenter, Counsel for the Respondent

HEARD: June 18, 2015

ENDORSEMENT

[1] Judges routinely approve and sign orders on consent. Where it is just the parties whose rights and interests are affected, there can be little difficulty in doing so.

[2] However, in some cases it is not only the interests of the immediate parties that are affected. In such cases, consent orders cannot merely be rubberstamped.

[3] An example is a request for an in camera hearing. The parties may be indifferent to whether the public should have access to the hearing, and in fact may prefer that the public not have access. However, the public has a strong interest in open and transparent judicial proceedings. Accordingly, a request for an in camera hearing will rarely be granted, and only in narrow circumstances.

[4] What is requested in this case is a sealing order, pursuant to s.137 of the Courts of Justice Act. The parties have jointly requested a sealing order. For somewhat the same reasons in camera hearings are rarely granted, sealing orders are also rarely granted, and only in narrow circumstances.

[5] For the reasons that follow, I decline to grant a sealing order but I will grant other relief in order to protect the legitimate interest in anonymity for a young child.

Background

[6] The underlying matrimonial dispute in this court involves, among other things, custody of and access to two children, both boys, who are now four and five years old.

[7] It would appear that one of the boys has gender identity issues. The mother seems to believe that the boy identifies as a girl, and the father believes his son is a normal boy who is being encouraged to act like a girl by his mother.

[8] The Children’s Aid Society became involved, and seized both boys and commenced child protection proceedings. They came before Justice O’Connell of the Ontario Court of Justice, who released her decision on June 1, 2015. Her decision is now reported: Halton Children’s Aid Society v. G.K., [2015] O.J. No. 2902 (O.C.J.).

[9] Justice O’Connell ordered the children returned to the shared parenting regime that had prevailed before the children were seized.

[10] Justice O’Connell’s decision has been the subject of press coverage. A lengthy article appeared in the Hamilton Spectator on June 12, 2015. Mr. Carpenter advised me that his office has been contacted by the CBC and the Toronto Star for comment.

[11] Mr. Carpenter, who appeared for both himself and Mr. McQueen, submits that the issue of LGBTQ rights is a matter that attracts interest from the press, and the publicity around Justice O’Connell’s decision may prompt others to search records of the proceeding in this court and discover the identity of the family and the names of the children.

[12] Mr. Carpenter submits that this would be contrary to the interests of the children, and particularly the child whose gender identity is in issue, and could cause significant damage to the child as he gets older and he must wrestle on his own with gender identity issues.

[13] Mr. Carpenter submits that both parties wish to protect the identities of the families and particularly the children, and are thus requesting that the court file be sealed.

Analysis

[14] It has been said many times that the open court principle is of fundamental importance in a democracy. Justice ought not to be administered behind closed doors. Open courts are important so that the public can be satisfied that justice is being administered properly.

[15] However, the open court principle is subject to exceptions. Where the interest in privacy outweighs the public’s right to know, orders can be made to restrict the public’s right to know. However, such orders should be carefully tailored, and limited to what is actually necessary to protect legitimate rights of privacy.

[16] Privacy interests are particularly compelling when it comes to the interests of children. In certain defined circumstances, this has achieved legislative recognition.

[17] In cases under the Youth Criminal Justice Act, there are provisions of that Act that ensure that, subject to certain exceptions, young people dealt with under the Act, as offenders, victims or witnesses, cannot be identified. Sections 110(1) and 111(1) of the Act provide as follows:

110. (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111. (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

[18] Section 70 of the Children’s Law Reform Act provides as follows:

70. 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.

(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.

(3) Any interested person may make an application for an order under subsection (1).

(4) The court may vary or discharge an order made under subsection (1).

[19] While the court retains discretion as to whether an order limiting access to a court file or prohibiting the publication of information should be made, this section requires the court to consider certain criteria, which suggest that an order preventing disclosure ought more readily to be made where the interests of children are at stake.

[20] Child protection proceedings, where the Children’s Aid Society becomes involved, are held under the Child and Family Services Act. Section 45 of that Act provides as follows:

Rules re hearings

45. (1) In this section,

“media” means the press, radio and television media.

Application

(2) This section applies to hearings held under this Part, except hearings under section 76 (child abuse register).

Hearings separate from criminal proceedings

(3) A hearing shall be held separately from hearings in criminal proceedings.

Hearings private unless court orders otherwise

(4) A hearing shall be held in the absence of the public, subject to subsection (5), unless the court, after considering,

(a) the wishes and interests of the parties; and

(b) whether the presence of the public would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding,

orders that the hearing be held in public. .

Media representatives

(5) Media representatives chosen in accordance with subsection (6) may be present at a hearing that is held in the absence of the public, unless the court makes an order excluding them under subsection (7). .

Idem

(6) The media representatives who may be present at a hearing that is held in the absence of the public shall be chosen as follows:

1. The media representatives in attendance shall choose not more than two persons from among themselves.

2. Where the media representatives in attendance are unable to agree on a choice of persons, the court may choose not more than two media representatives who may be present at the hearing.

3. The court may permit additional media representatives to be present at the hearing. .

Order excluding media representatives or prohibiting publication

(7) The court may make an order,

(a) excluding a particular media representative from all or part of a hearing;

(b) excluding all media representatives from all or a part of a hearing; or

(c) prohibiting the publication of a report of the hearing or a specified part of the hearing,

where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.

Prohibition: identifying child

(8) No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.

Idem: order re adult

(9) The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

Transcript

(10) No person except a party or a party’s solicitor shall be given a copy of a transcript of the hearing, unless the court orders otherwise.

[21] This section reflects a balance of interests, but leans towards the protection of the privacy of a child who is the subject of a child protection proceeding. Subject to an order to the contrary, media representatives may be present at a hearing, which otherwise shall be held in the absence of the public. Any information that might have the effect of identifying a child who is a witness, a participant or a parent is prohibited.

[22] Apart from the specific provisions contained in the Youth Criminal Justice Act and the Child and Family Services Act, there is no rule of law that automatically requires that a child not be identified in a legal proceeding. However, for much the same policy reasons that influenced Parliament and the Ontario legislature in enacting the statutory provisions to which I have referred, there are obvious circumstances in which it would be contrary to a child’s interests to be identified in a legal proceeding. This has been recognized in a number of cases, and orders have been made either sealing files or requiring that information not be disclosed or published that might identify a child or a child’s family.

[23] Section 137 of the Courts of Justice Act provides as follows:

137 (1) On payment of the prescribed fee, a person is entitled to see any document filed in a civil proceeding in a court, unless an Act or an order of the court provides otherwise.

(2) A court may order that any document filed in a civil proceeding before it be treated as confidential, sealed and not form part of the public record.

(3) On payment of the prescribed fee, a person is entitled to see any list maintained by a court of civil proceedings commenced or judgments entered.

(4) On payment of the prescribed fee, a person is entitled to a copy of any document the person is entitled to see.

[24] This section reflects a balancing of interests, in cases not governed by specific legislation. Section 137(1) sets out the general principle that a member of the public is entitled to see any document filed in a civil proceeding unless the court orders otherwise. Section 137(2) reposes in the court a discretion to order that any document filed in a civil proceeding be sealed and not form part of the public record. I will discuss a number of cases in which the appropriate factors are considered as to how the court should exercise its discretion.

[25] In M.S.K. v. T.L.T., [2002] O.J. No. 4179 (S.C.J.), Kiteley J. considered a request to seal the contents of a court file where a custody and access dispute involved parents of great wealth and public profile. Evidence was filed that showed that identification of the parties and the child could put the child at serious risk of harm.

[26] Kitelely J. decided that she would not make an order sealing the entire court file. Rather, she ordered the sealing of certain specific information which could potentially cause harm to the child.

[27] On appeal to the Court of Appeal, M.S.K. v. T.L.T. (2003), 2003 CanLII 27471 (ON CA), 168 O.A.C. 73 (C.A.), that court held that in view of Kiteley J.’s finding of a risk of potential harm to the child, the child’s best interests required an order sealing the entire file. I should note that the decision of the Court of Appeal has not been referred to again by the Court of Appeal in any subsequent case.

[28] A case not involving children, but in which some general principles are discussed, is M.E.H. v. Williams (2012), 2012 ONCA 35, 108 O.R. (3d) 321 (C.A.). That case involved the well-known murderer, Russell Williams, who had been convicted of first degree murder and a number of sex crimes. His wife sought a non-publication and sealing order in respect of her divorce proceedings. The judge of first instance granted the orders sought.

[29] The Court of Appeal allowed an appeal, and set aside the order.

[30] At para. 22, Doherty J.A. quoted from the judgment of Iacobucci J. in R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442, at para. 32 as follows:

A publication ban should only be ordered when:

a) such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk;

b) the salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice.

[31] Doherty J.A. described the two branches of the test as the “necessity” branch and the “balancing of interests” branch. He held that if the necessity branch is not satisfied, there is no need to move to the second branch. At para. 31, he stated:

The necessity branch focuses exclusively on the existence of a serious risk to a public interest that can only be addressed by some form of non-publication or sealing order. The potential benefits of the order are irrelevant at this first stage of the inquiry: Mentuck at para. 34. Unless a serious risk to a public interest is established, the court does not proceed to the second branch of the inquiry where competing interests must be balanced.

[32] At para. 33, he stated:

In approaching the necessity branch of the inquiry, the high constitutional stakes must be placed at the forefront of the analysis. Freedom of expression, including freedom of the press and other media communications, is a constitutionally protected fundamental freedom. The constitutional right to freedom of expression protects the media’s access to and ability to report on court proceedings. The exercise of this fundamental freedom in the context of media coverage of court proceedings is essential to the promotion of the open court principle, a central feature of not only Canadian justice, but Canadian democracy.

[33] Ultimately, Doherty J.A. concluded that the applicant did not provide the kind of convincing evidence needed to satisfy the first branch of the test, and it was consequently unnecessary to consider the second branch of the test. The order made by the motion judge was set aside.

[34] Cases specifically involving the interests of children are instructive.

[35] In B.(K.) (Litigation Guardian of) v. Toronto District School Board (2006), 2006 CanLII 14411 (ON SCDC), 81 O.R. (3d) 56 (Div. Ct.), Chapnik J. considered a request for a confidentiality and sealing order in the context of a judicial review application. An alleged violent incident had taken place at a school in Toronto, and judicial review was sought of the School Board’s decisions to exclude and transfer the students from the school. An order sealing the court file was sought.

[36] Chapnik J. held that a sealing order was not justified. It was not necessary to prevent a serious risk to the administration of justice. However, she granted an order removing identifying information of the victim and witnesses so as to render the information anonymous.

[37] In Labadie v. Labadie, [2006] O.J. No. 3052 (S.C.J.), Del Frate J. considered whether a sealing order should have been granted in a case where it was alleged that the husband had committed sexual assault on and sexual interference with a minor. During matrimonial proceedings, a report from the Ontario Children’s Lawyer was obtained, and the circumstances were outlined in the OCL’s report. An order was made sealing the court file.

[38] Del Frate J. held that the sealing order should not have been granted. At para. 35, he stated:

The appropriate method would have been to sanitize the file, thereby protecting the identity and privacy of the victims, while at the same time allowing the file to be accessed for other reasons.

[39] A case that is rather close to the circumstances of this case is C.M.G. v. R.G., [2012] O.J. No. 1884 (S.C.J.). As in the case before me, the parties consented to an order sealing the file and identifying the parties and the children by initials.

[40] The parties were married in 1995 and separated 14 years later. Their children were then aged 13 and 12. The parties were part of a high profile family in Ottawa. Both children had struggled emotionally with the separation of their parents. One of the children had become fixated on the topic of suicide.

[41] It was feared that the children’s peers may learn about the proceeding and that the children may be subjected to embarrassing and potentially damaging situations.

[42] Mackinnon J., at para. 16, stated that she was satisfied that the case was likely to attract media attention. Some of the grounds pleaded included allegations of misconduct that could be considered salacious and, whether true or not, could be expected to attract publicity to the case. At para. 18, she stated:

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.”

[43] In the final analysis, Mackinnon J. refused to seal the entire file. However, she ordered that the children and the parties be identified by their initials, and the portions of the file relating to the claims to set aside a marriage contract, exclusive possession of the cottage, and custody and access to the children be sealed.

[44] In W.W. v. X.X (2013), 31 R.F.L. (7th) 418 (Ont. S.C.J.), Hennessey J. considered a request to identify the parties and a child by initials; to prohibit the publication of any information that would have the effect of identifying the child; and to seal the court file. She granted the requested order.

[45] The dispute involved access and a declaration of parentage with respect to a child born following a sperm donation from the applicant. There had been some publicity about the dispute and the circumstances surrounding the birth of the child. At para. 9 she stated as follows:

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.

[46] She then made an order requiring that no person publish or make public information that has the effect of identifying the child or the parties; amending the title of proceedings to use initials to identify the parties and the child; prohibiting anyone having access to the file to communicate to any other person the identity of the parties, the child or any information that has the effect of identifying the parties or the child; and sealing the file.

[47] In the case before me, there is no question that it is not in the interests of the child that he be identified in any way. This is particularly so because the child is at an age where his gender identity has not fully formed, and it is not clear that he is even in the process of identifying his preferred gender. As was the case before O’Connell J. in the child protection proceedings, there are issues in the case in this court as to what restrictions, if any, should be placed on the parents in influencing the child, one way or another, as to his preferred gender. It is a matter of superordinate importance, in my view, that restrictions be placed on any information that might, directly or indirectly, identify the child.

[48] Having said that, there is no doubt that the issue of whether, and to what degree, it is appropriate that parents influence the gender identity of one of their children is a matter of public interest. The open court principle would suggest that the processes of the court should be open to the extent possible, to allow the public to see how that debate plays out in the court system.

[49] I am not persuaded that an order sealing the entire file is necessary or appropriate. To do so will shut the public out from the debate altogether.

[50] I recognize that when I use the term “public”, in reality I am talking about the press. In practical terms, individual members of the public do not ordinarily attend courthouses to examine court files simply to satisfy their curiosity. The practical reality is that this is usually only done by news reporters who are seeking information that may be relevant to newsworthy stories. News organizations have access to legal advice, and are accustomed to complying with orders made under the Youth Criminal Justice Act and the Child and Family Services Act, that restrict the publication of information that may identify children. If I make an order in that respect, I have little doubt that it will be complied with.

[51] In any event, most of the facts and evidence that could be gleaned from this court’s file have already been extensively reviewed by O’Connell J. in her 119-paragraph decision. Not much more can be discovered, except for the identity of the family and the children, that is not already in the public domain. It will be sufficient, in my view, that I make an order requiring the use of initials and prohibiting the communication or publication of information that might identify the parties or the children.

[52] Accordingly, I will make an order similar in some respects to the order made by Hennessey J. in W.W., with one exception. I order as follows:

a) the title of proceedings shall be amended to use initials to identify the parties and the children;

b) no person shall publish or make public any information that has or could have the effect of identifying the parties or the children;

c) any person who has gained, or gains in the future, access to the court file is prohibited from communicating to any other person the identity of the parties, the children, or any information that has the effect or could have the effect of identifying the parties or the children.

[53] I decline to make any other order, and specifically I decline to make an order sealing the file or any part of it.

Gray J.

Date: June 22, 2015