Court File and Parties

COURT FILE NO.: FS-16-20944, 20945, 20922, 20929 DATE: 20160711 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: B.C.P and L.P., Applicants AND: A.R.P., Respondent

RE: N.G.B. and S.M., Applicants AND: C.L.L. and J.S.L., Respondents

RE: L.A.B. and J.R.N., Applicants AND P.B. and A.E.J.J.F., Respondents

RE: K.D.W. and G.S.W., Applicants AND J.D., Respondent

BEFORE: Kiteley J.

COUNSEL: Shirley E. Levitan, for the Applicants in FS-16-20944 and 20945 Sara R. Cohen, Anatoly Dvorkin and Matthew Rendely, for the Applicants in FS-16-20922 and 20929 Cindy Wasser, counsel for other Applicants not before the court

HEARD: July 5 and 6, 2016

Endorsement

[1] I dealt with the applications in FS-16-20944 and 20945 on July 5 and the applications in FS-16-20922 and 20929 on July 6. In each of these four parentage applications involving assisted reproductive technologies (ART), s. 137 of the Courts of Justice Act is engaged and therefore I must consider the impact of the Superior Court of Justice Practice Direction that took effect July 1, 2016. In response to the oral motion by counsel on behalf of the applicants in the four cases, I exercise my discretion and dispense with the requirement in the Practice Direction that the applicants serve and file a notice of motion or application with respect to relief pursuant to s. 137(2) and dispense with the requirement to provide notice to the media with respect to the relief sought pursuant to s. 137(2).

Context in which applications brought

[2] Part II of the Children’s Law Reform Act provides a mechanism whereby intended parents using assisted human reproductive technologies and surrogates to create families may apply to the Superior Court of Justice for a declaration that they are the child’s only parents and that the surrogate who gave birth is not the mother of the child and her domestic partner, if any is not the father of the child. The applicant(s) may ask for an order directing the Deputy Registrar for the Province of Ontario to register the birth of the child in such a fashion as to identify the applicant(s) as the only parent(s) of the child.

[3] Applicants routinely seek an order pursuant to s. 137(2) of the Courts of Justice Act initializing, sealing and keeping all court records confidential and ordering the Deputy Registrar General to keep confidential all records other than the birth certificate and Statement of Live Birth. The applications are usually heard in camera. When that now routine order is made the Registrar of the Superior Court takes steps to ensure that the contents of the application are not available as public records. As a result, the Registrar initializes the case names and those files are sealed.

[4] Pursuant to the Vital Statistics Act, once the Deputy Registrar receives such an order, the applicant(s) will be registered as the only parent(s) of the child and the birth certificate will be issued accordingly.

[5] After the child is born, counsel for the applicant issues an application in which the intended parent(s) is the applicant and the surrogate (and her domestic partner if any) is the respondent. The Deputy Registrar General for the Province of Ontario is also named as a respondent. While the title of proceedings has the appearance of being traditional adversarial litigation, it is not.

[6] The material on which the applicant(s) relies typically consists of the following: application, affidavit of the intended parent(s); affidavit of the surrogate and of her domestic partner if any; draft order to which the applicant(s) and respondent(s) consent in its entirety and to which the Deputy Registrar General consents with respect to the two paragraphs applicable. One or more of the affidavits will attach documents relevant to the case such as a copy of the surrogacy agreement, a copy of the ova donation agreement, written confirmation from the fertility clinic as to the procedure adopted, and a DNA Testing Laboratory Report.

[7] In the four cases listed above, the circumstances the applicants presented are as follows;

(a) two married heterosexual couples, one residing in Ontario and the other residing in another province. For medical reasons each couple was unable to have children and each couple contracted with a gestational carrier: in one to have implanted embryos created by fertilizing an anonymous egg donor’s ova with the sperm of the male applicant and in the other case, to have implanted embryos created by fertilizing the female applicant’s ova with the sperm of the male applicant. In one case the respondents are the surrogate and her husband, who have their own biological children. In the other case the respondent is single and has her own biological children. The children were born in Ontario. In each case the children have been in the care of the intended parents since birth although in one case, the departure from hospital was delayed due to health reasons. In the former case the DNA report confirms that the male and female applicants are “practically proven to be the biological father and mother”. The applicants ask that they be declared the parents and that the surrogate and her domestic partner be declared not to be the mother and father respectively. In the latter case, the DNA report confirms that the male applicant is “practically proven to be the biological father” and the surrogate is “excluded as the biological mother”. The applicants ask that they be declared the parents and that the surrogate be declared not to be the mother;

(b) two gay couples both residing outside of Canada, one where the parties have married and the other where they cohabit. Following in vitro insemination using the semen of one of the applicants and ovum provided by third party anonymous donor, the surrogates each gave birth to a child at a hospital in Ontario. The child in each case has been in the care of the intended parents since leaving the hospital immediately after the birth. In each case, the DNA report confirms that the husband who donated the semen is “practically proven to be the biological father” and that the surrogate is “excluded as the biological mother”. In one of those cases, the applicants ask that the court declare that both applicants are the parents and that the surrogate is not the mother. For reasons indicated, in the other case, the applicants ask that the biological father be declared the parent and that the surrogate be declared not to be the mother.

[8] Having heard many applications for declarations of parentage, these cases reflect the diversity of circumstances that are presented. Others include families where a single person (without a domestic partner) is impregnated using ART; where more than two persons ask to be declared the parents; where the ovum is from a known donor; and other permutations and combinations in the straight and LGBTQ communities. The women who volunteer to be a surrogate are often strangers to the applicants but are sometimes long-standing friends or relatives. The surrogates frequently have children and are often in a long-term relationship with a partner with some surrogates being single. On occasion, the respondent has acted as surrogate on more than once with the same intended parents or with different families. Often the application is with respect to only one child, but as in the case of one of the four applications referred to above, the intended parents now have twins.

[9] There is a small and growing group of legal providers of services related to these applications including those offering independent legal advice to surrogates.

Motions to dispense with notice

[10] On June 29, 2016, I heard three parentage applications. The Chief Justice of the Superior Court had just announced that the Practice Direction had been amended effective July 1, 2016 to provide that in any civil, criminal or family proceeding before the Superior Court

(i) unless otherwise directed by a judge, any person seeking a discretionary publication ban must serve and file a formal notice of Application/Motion and

(ii) unless otherwise directed by a Judge, must provide notice to the media using the publication ban notification system established by the court.

The Practice Direction did not apply to the applications heard June 29 but would apply to those heard in the future including those scheduled for July 5 and 6. On June 29, in anticipation of the implementation date, I asked counsel to provide a factum on the effect of the amended Practice Direction on parentage applications.

[11] On Tuesday July 5 and Wednesday July 6, lawyers attended on the four applications listed above. The lawyers named above had collaborated over the long weekend to prepare a factum specific to one of the applications before me on July 5 as well as a factum of general application. In addition, counsel provided a supplementary affidavit of one of the surrogates as well as an affidavit from a professional involved in the area of parentage applications. The deponent is named in the affidavit but it is not clear that the identity of the deponent was meant to be on the public record. It is not necessary for me to name that deponent. [1]

[12] I commend the lawyers for the significant effort as professionals that they made in order to provide the court with the legal analysis necessary to decide whether to “direct otherwise”. This issue is of great importance to all of the applicants and respondents, to the children who are the subject of the parentage applications, to other children of the applicants and respondents, and to close family and friends who, as the evidence indicates, have “shared the journey” of the intended parents to arrive at such extraordinary outcomes, as well as of great importance to the surrogates and their domestic partners and their children.

[13] For each of the four applications heard on July 5 and 6, I made the declaratory orders required so that the intended parents could obtain birth certificates but I did not make any orders initializing or sealing the files. It was necessary that I take the issue under reserve in the expectation that, if I did exercise discretion, that counsel for each of the applicants would submit a revised order or supplementary order that reflected that outcome. As will be seen below, I have created a process for counsel to obtain replacement orders that address the issues arising from the Practice Direction.

Evidence with respect to non-publication

[14] The affidavits of the intended parent(s) and of the surrogate typically include the following evidence:

(a) the means of conception is a private matter;

(b) the intended parents will share that information with the child when the child is mature enough to understand the concepts and the intended parents are concerned about the serious repercussions and harm that could result to the child, the intended parents, the surrogate and her domestic partner, other children of the intended parents and of the surrogate, as well as members of extended families if the information was available from other sources;

(c) the intended parents express the belief that there continues to be a stigma associated with infertility, surrogacy and egg donation and are concerned about the child finding out from other sources without having been prepared for the discussion;

(d) the documents in the court record include personal and private health information including the DNA reports and in some cases, specific care expectations during the pregnancy which are reflected in the surrogacy contract, as well as evidence of the surrogate and her husband as to the steps taken to ensure that the pregnancy could only have occurred as a result of the ART;

(e) because of the nature of the personal and private health and other information, there is a risk that mental and emotional harm could arise directly to the intended parents and surrogate and her husband, and indirectly to the children;

(f) if the court file is not sealed there remains a constant risk of harm to all involved;

(g) for those reasons, the intended parents express the belief that an order sealing the file is in the best interests of the child who is the subject of the application.

[15] In the supplementary affidavit of the surrogate in one of the four applications listed above, she pointed out that if litigation arises, pursuant to a term of the Surrogacy Agreement, all parties will ask that the court records be sealed and will request the court to invoke non-publication orders, and request that the court in its procedures and in the conduct of hearings maintain confidential the identify of all of the parties. She also deposed that she expected that the agreement would ensure that the privacy of her own two children would be protected and she noted that she and her husband wanted to decide when their children were mature enough to hear her role in the birth of a child for another family and she expressed the concern that damage to her children could be caused if they heard from third parties who had gained access to the court documents. She expressed similar concerns to those of the intended parents and she too expressed the belief that a sealing order would be in the best interests not only of the child, but also of the intended parents, the surrogate and the surrogate’s children.

[16] The affidavit of the deponent referred to in paragraph 11 above brought a personal and historical perspective on some of the challenges which intended parents experience in dealing with infertility, the continued perception of stigmatization arising from infertility and ART, the growing availability of fertility services, the importance of privacy, and the joy that is brought to parents who leave the hospital with their child or children.

Analysis

[17] The relevant parts of s. 137 of the Courts of Justice Act are as follows:

DOCUMENTS PUBLIC (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.

SEALING DOCUMENTS (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.

[18] The Practice Direction contains the following:

F. Publication Bans

Application of this Part

104. This part applies to all civil, criminal and family proceedings in the Superior Court of Justice and to proceedings in the Divisional Court.

105. This part applies to all applications or motions for discretionary publication bans. It does not apply to publication bans that are mandated by statute (i.e. those that either operate automatically by virtue of statute or that a statute provides are mandatory on request).

Formal Notice of Application/Motion Required

106. Unless otherwise directed by a judge, any person seeking a discretionary order restricting publication of any Superior Court proceeding must serve and file a notice of motion or application and any supporting materials, in accordance with the applicable procedural rules.

Notification of the Media

107. Unless otherwise directed by a judge, the person seeking the publication ban (the requesting party) must provide notice to the media of the motion/application, using the procedure set out in this section.

108. The requesting party must complete and submit the “Notice of Request for Publication Ban” form available on the Superior Court of Justice website.

109. The length of notice required for the submission of the Notice of Request for Publication Ban is the same as the length of notice required under the applicable procedural rules for the serving and filing of the Notice of Application or Notice of Motion.

110. The information on the Notice of Request for Publication Ban will be distributed electronically to members of the media who have subscribed to receive notice of all publication ban applications/motions in the Superior Court.

111. Any member of the media who wishes to receive copies of the Notices prepared and submitted under this section should submit a request through the Superior Court of Justice website.

112. The requesting party may be required to produce a copy of the Notice of Request for Publication Ban to the Court at the hearing of the application/motion in order to establish that notice was provided in accordance with this section.

[19] The applicants in parentage applications typically do not ask for “non-publication” orders but they do ask for sealing and initializing which means that s. 137(2) and the Practice Direction is engaged.

[20] In M.S.K. v. T.L.T. [2] in a custody case of a child then 4 years old, I had made an order that if specific information was expunged from the court file, it was not necessary to seal the entire file. The Court of Appeal held that an order sealing the entire file was in the best interests of the child.

[21] In a parentage application with respect to a child born following a sperm donation from the applicant [3] Hennessy J. accepted the joint submission by counsel for all parties and made an order initializing the names of the parties, referring to the child by initials, prohibiting the publication of any information that would have the effect of identifying the child and sealing the court file. In so doing, she held that it would be in the best interests of the child at the centre of the dispute if an order was granted and she was satisfied that such an order would not impair or adversely affect public comment or debate on the issues arising in the case.

[22] In Dagenais v. Canadian Broadcasting Corp. [4] the Supreme Court held that a publication ban, a sealing order, or any other relief limiting the openness principles of judicial proceedings should only be ordered where (a) a ban is necessary in order to prevent a real and substantial risk to the fairness of the trial, because reasonably available alternative measures will not prevent the risk; and (b) the salutary effects of the publication ban outweigh the negative impact on the freedom of expression of those affected by the ban.

[23] In R. v. Mentuck [5] the Supreme Court reformulated the test stating that 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; and (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.

[24] In Re Vancouver Sun [6] the Supreme Court referred to the “adaptable” Dagenais/Mentuck test to balance freedom of expression and other important rights and interests that are broader than simply the administration of justice and may include privacy and security interests.

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

CONFIDENTIALITY (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.

CONSIDERATIONS (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.

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

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

[26] Section 70 applies only to applications pursuant to Part III of the Act, namely custody, access and guardianship so it does not apply to Part II applications for the establishment of parentage.

[27] Section 165 of the Child and Family Services Act mandates that information must be kept confidential after an adoption order is made. In Part III child protection proceedings, s. 45(4) mandates that the hearing be held in the absence of the public with specific direction as to how a media representative might be allowed to observe. Section 45(8) prohibits information from being made public that has the effect of identifying the child.

[28] As a result of those statutory provisions, children involved in custody, access and guardianship proceedings have the advantage of optional confidentiality orders, which on their face might warrant a judge exercising his or her discretion pursuant to Part F of the Practice Direction. Children subject to protection proceedings have the benefit of a statutory ban on publication and hence the Practice Direction would not apply to such proceedings.

[29] Children who are the subject of a parentage application have no such protection. There is no justification for the different treatment.

[30] According to the facta provided, counsel estimate that since 2000, over 500 parentage declarations have been made in Ontario. The statistics in Toronto have been kept only since November 2014 and they indicate 15 applications in November and December 2014 compared with 29 in those two months in 2015; and total 142 in 2015 and 68 to the end of June 2016. Many children and families as well as surrogates and their children are impacted by Part 2 of the Children’s Law Reform Act and s. 97 of the Courts of Justice Act and the statutory access to important declaratory relief.

[31] From the cases and statutes referred to, I have applied the criteria I consider relevant. With respect to the four applications listed above and to parentage applications in general, I conclude as follows:

(a) the order to seal the court record is necessary to prevent a serious risk to the proper administration of justice because reasonable alternative measures (such as redaction of names and other identifying information or post Notice ban) will not prevent the risk of disclosure and, as a result of a mistake in redaction, may expose those involved to the same risk;

(b) the proper administration of justice requires the protection of the child who is the subject of the parentage application. The Notice of Request form requires the names of the case, which includes the names of the intended parents to be distributed to the media. Once that notice is provided, the information is in the public domain and subsequent sealing will not undo the potential for damage. The horse is out of the barn;

(c) other children of the intended parents and the intended parents have privacy and security concerns that the court must consider;

(d) the surrogate and her domestic partner (if any) and her or their children have privacy and security concerns that the court must consider;

(e) the salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public including the right to freedom of expression;

(f) even though s. 70 is not applicable, it contemplates the nature and sensitivity of the information contained in the documents. In cases of parentage applications, there is no purpose served by putting intimate details into the public domain. Section 70 also contemplates the possibility of physical, mental or emotional harm to any person referred to in the documents which in cases of parentage applications, includes the child who is the subject of the application, siblings of that child, children of the surrogate, intended parents and surrogate and her domestic partner. There is no justification for exposing all of them to risk of such harm;

(g) confidentiality orders would not stifle any public comment or debate on the issues of infertility and ART or their implications;

(h) by exercising the court’s discretion not to put the media on notice and sealing the court file, the court will protect the child’s dignity and privacy, and this salutary effect far outweighs the extremely remote deleterious effect, if any, on the public generally of being deprived of the opportunity to know the background of the child’s birth.

[32] I am satisfied that: it is in the direct best interests of the child that is the subject of the parentage application and in the indirect best interests of that child that privacy be afforded as well to intended parents and other siblings and to the surrogate and her domestic partner (if any), and their children (if any) that I exercise my discretion against notification to the media.

[33] This order applies only to the four applications before me; however, by undertaking a broader analysis of the issues arising from the Practice Direction, I am optimistic that it may be of more general application. I encourage counsel to share their facta with their colleagues to assist judges who are asked to exercise their discretion pursuant to Part F of the Practice Direction.

[34] As mentioned above, two of the four applications involve parents from a country other than Canada. One could say that distance diminishes the need for such orders. However, in the electronic age where communications can be instantly global, they too experience the same concerns.

ORDER TO GO AS FOLLOWS:

[35] With respect to each of the four applications referred to above, the applicants are not required to serve and file a Notice of Request for Publication Ban and not required to notify the media.

[36] With respect to each of the four applications listed above, an order shall issue replacing the orders I signed on July 5 (in the case of FS-16-20944 and 20945) and on July 6 (in the case of FS-16-20922 and 20929) with orders that contain the following relief, with modifications to the declaratory paragraphs to reflect the circumstances in each case:

Under the Children’s Law Reform Act Section 4(1), (2) and (3) and the Courts of Justice Act section 97

1. It is declared that the applicants A and B are the parents of the child C, born on [date] and that the applicants are recognized in law to be the parents of the child.

2. It is declared that the respondent D is not the mother of the child and the respondent E is not the father of the child.

Under the Vital Statistics Act,

3. The Deputy Registrar General for the Province of Ontario is directed to register the birth of the child so as to show the applicants A and B as the parents of the child.

Under the Consolidated Provincial Practice Direction of the Ontario Superior Court of Justice, section F, paragraphs 106 and 107

4. Service and filing of a notice of motion or application with respect to the relief granted under paragraphs 6 and 7 of this order are dispensed with.

5. Notice to the media with respect to the relief granted under paragraphs 6 and 7 of this order is dispensed with.

Under the Courts of Justice Act, section 137(2)

6. the Registrar of the Ontario Superior Court of Justice is directed to seal and treat as confidential all documents filed in this case.

7. The name of this case shall be changed to show only the initials of the parties and the Registrar of the Ontario Superior Court of Justice is directed to amend the records accordingly.

8. the Deputy Registrar General for the Province of Ontario is directed to seal and treat as confidential the notice of live birth and all other records in its possession in connection with this case, including this order, save and except for Form 2 (Statement of Live Birth) and the birth certificate.

[37] Counsel may forward replacement orders to my attention through the Trial Co-ordinator.

Kiteley J. Date: July 11, 2016

[1] The affidavit of “the deponent” did not have the name of the case or a court file number. Having reviewed and referred to it below, I have filed it in FS-16-20922.

[2] M.S.K. v. T.L.T., [2003] O.J. No. 352 OCA

[3] W.W. v. X.X. and Y.Y., 2013 ONSC 929

[4] Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835

[5] R. v. Mentuck, [2001] 3 S.C.R. 442

[6] Re Vancouver Sun, [2004] 2 S.C.R. 332