Court File and Parties
Citation: G.T.G.D. v. M.D., 2016 ONSC 4190 Court File No.: FC-11-1816 Date: 20160624 Superior Court of Justice - Ontario
Re: G.T.G.D., Applicant And: M.D., Respondent
Before: Madam Justice G. Toscano Roccamo
Counsel: Susan E. Galarneau, for the Applicant Steven Duplain, for the Respondent
Heard: In writing
Endorsement
[1] Following viva voce evidence heard on May 19, 20, 26 and 27, 2016 on a Motion to Change the terms of a custody and access order, I received a request in writing from the Respondent for an order pursuant to section 137(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”), that my decision in the matter be published using initials for the parties, the children and involved witnesses. The Respondent does not seek an order for the sealing of any portions of the file.
[2] The request was made on consent of both parents although I did not receive written submissions from the Applicant.
[3] The Respondent’s request was not accompanied by any affidavit in support or an expert opinion addressing the potential harm that could arise from publication of information tending to identify the children.
[4] However, it was plain from the body of evidence I received at trial, and from the brief submissions made by counsel in respect of this request, that it was made to limit the risk of future mental and emotional harm to the children of the parties, G. Jr., born […], 2005, and L., born […], 2007, whose best interests were at the heart of this Motion to Change.
[5] The Respondent referred me to three decisions to guide the exercise of my discretion in this matter.
[6] In C.M.G. v. R.G., 2012 ONSC 2496, 20 R.F.L. (7th) 139, MacKinnon J. declined to seal the court file pertaining to the proceedings before her, but ordered the use of initials to identify the parties and the children, as a balanced response to the risk of harm to the children, given their vulnerable state and the high profile of the family in the community.
[7] I note that in C.M.G. v. R.G., the applicant attached her intended application as an exhibit to her affidavit in support of her motion under section 137(2) of the CJA. The application contained salacious allegations expected to attract publicity.
[8] In arriving at her decision, MacKinnon J. applied the test used in M.S.K. v. T.L.T. (2003), 2003 27471 (ON CA), 168 O.A.C. 73 (C.A.), where the Court of Appeal found that given the risk of potential harm through abduction of a child, her best interests required an exception be made to the general rule in favour of openness of the courts, and ordered the entire court file be sealed. In addition, MacKinnon J. also considered the importance of the evidentiary record on a motion for a confidentiality order, as discussed by the Ontario Court of Appeal in M.E.H. v. Williams, 2012 ONCA 35, 108 O.R. (3d) 321, at paras. 29 and 30, and found that there was insufficient evidence before her to meet the rigorous necessity test that would justify a non-publication or sealing order. However, based on the record before her, she was satisfied that the children were at a significant risk of emotional harm from a public airing of the mother’s allegations of the father’s misconduct that went well beyond the usual impact of divorce and separation on children.
[9] In D.K. v. M.K. and J.P., 2010 ONSC 4585, at para. 16, van Rensburg J., as she then was, affirmed the power of the courts to use initials to identify parties and children in a high conflict divorce involving a custody and access dispute. As in the matter before me, the parties did not move to seal the court file in D.K. v. M.K. and J.P.
[10] Indeed, in that case the litigation had been ongoing for several years, in the course of which the parties pursued and obtained various types of relief, including access to the parties’ teenage son whom the father contended had been the subject of parental alienation by the mother.
[11] The evidence heard at trial in D.K. v. M.K. and J.P. included the parties’ testimony, as well as viva voce evidence from relatives, the vice principal of the child’s high school, two social workers from the Office of the Children’s Lawyer and the Children’s Aid Society, and a gymnastics coach.
[12] In considering the necessity of a sealing order to prevent the risk of harm, as balanced against the public interest in open and accessible court proceedings, van Rensburg J. referred to the decision of D. Brown J., as he then was, in J.B. Trust (Trustees of) v. J.B. (Litigation Guardian of) (2009), 2009 33033 (ON SC), 97 O.R. (3d) 544 (S.C.), in which D. Brown J. refused a sealing order in a trust matter involving two children, but ordered the use of initials in any materials to be filed in the pending application as a “reasonable alternative measure” to protect the children’s privacy interests.
[13] Although the court file was not to be sealed, and there is little doubt that the identity of the child was in no way protected in the interim proceedings brought before the trial, van Rensburg J. was satisfied that an order was necessary to protect the child’s privacy interests, and to protect the child from the risk that publication of any information tending to identify the child would result in the child being singled out in a way that was detrimental to his interests.
[14] Similarly, in an application to determine parentage of and access to a child born following a sperm donation from the applicant, Hennessy J. considered the intimate nature and sensitivity of the information contained in the record in W.W. v. X.X. and Y.Y., 2013 ONSC 929, 31 R.F.L. (7th) 418. Noting that the matter had been the subject of two motions and a number of case management proceedings, and that the pleadings and documents filed prior to her involvement included the full name of the parties and the child, Hennessy J. nonetheless found that a sealing order and amendment of the title of proceedings to refer to the parties and child by initials only was necessary to protect the child from future mental or emotional harm, and to preserve the child’s fundamental right to dignity and privacy. Hennessy J. specifically found that the order made pursuant to section 137(2) of the CJA would not stifle public comment or debate on the issues arising in the case. She also referred to the jurisdiction of the court in child protection proceedings, where the parties and children are identified by initials and access to the court file is restricted by virtue of section 45(8) of the Child and Family Services Act, R.S.O. 1990, c. C.11.
[15] Having considered this body of case law, I note that in the past two years, the parties in the matter before me have brought two substantive motions in connection with this Motion to Change. They have also both been questioned. In addition, the children’s school principal voluntarily attended questioning.
[16] At the outset of trial, the parties filed two Compendia, and four books of documents including police records relating to nine complaints made by the Respondent since 2011, wherein she has advanced unverified complaints against the Applicant of physical and sexual assault involving both herself and the children. In addition, I received CAS records in connection with the Respondent’s complaints, which rule out any protection concerns arising from these complaints, but which identify a serious risk of emotional harm arising from the parental conflict.
[17] I heard evidence from the Applicant that the Respondent has taken the youngest of the children, L., aged eight, for no less than five sexual assault assessments.
[18] I heard testimony from the children’s physician, Dr. D.K. in respect of a rising number of psychosomatic complaints from the eldest child, G. Jr., almost 11, which he opined were tied to the stress arising from the ongoing strife between the parties.
[19] The children’s school principal, L.W., also testified at trial to update the evidence she provided at questioning. She detailed the challenges faced by both children at school: in L.’s case, by reason of a learning disability, and in G. Jr.’s case, by reason of learning delays, in part related to his triangulation of the conflict and refusal to undertake homework assignments at the Respondent’s home.
[20] In short, the evidence before me was clear that the challenges faced by the children are compounded or connected to the parental conflict.
[21] On the record before me, I am more than satisfied that the children have special needs and are particularly vulnerable in that they have already been exposed to a high level of conflict between their parents. In the case of G. Jr., he also exhibits disturbing symptoms of a child in emotional distress.
[22] I am satisfied that the children should be spared any additional risk of future emotional harm arising from the publication of my Reasons for Decision, which will address the Respondent’s allegations against the Father and their aftermath.
[23] I am satisfied that publication of the details of the impact of the parental conflict upon the children’s lives further violates their right to dignity and privacy.
[24] I further find that the order sought would not stifle public comment on the issues pertinent to this case.
[25] As such, an order shall issue on consent:
amending the title of proceedings to identify the parties by initials only;
to refer to the parties, the children, and the witnesses at trial by initials only; and
to prohibit the publication of any information that would have the effect of identifying the children.
[26] No costs were requested, and none are ordered.
Madam Justice Toscano Roccamo
Date: June 24, 2016
CITATION: G.T.G.D. v. M.D., 2016 ONSC 4190 COURT FILE NO.: FC-11-1816 DATE: 20160624
ONTARIO SUPERIOR COURT OF JUSTICE
RE: G.T.G.D., Applicant AND M.D., Respondent
BEFORE: Madam Justice Toscano Roccamo
COUNSEL: Susan E. Galarneau, for the Applicant Steven Duplain, for the Respondent
ENDORSEMENT
Toscano Roccamo J.
Released: June 24, 2016