Superior Court of Justice
COURT FILE NO.: 744-17 DATE: 2019-08-12 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Abir Alsaid-Ahmad Applicant
– and –
Majd Jibrini Respondent
In Person In Person
ENDORSEMENT – MOTION TO SEAL COURT FILE THE HONOURABLE MADAM JUSTICE L. SHEARD
Overview
[1] On July 24, 2019 the applicant brought an “emergency” motion, returnable on July 24, 2019. On July 26, 2019, the applicant and the respondent brought a second “urgent” motion seeking the same relief. This motion was accompanied by a consent signed by the respondent. Both parties are self-represented.
[2] The Hamilton Family Court delivered the motions to me, and I have treated them as motions in writing.
[3] The motions seek the following orders:
(1) that my Reasons for Judgment dated July 4, 2019 and the Addendum to the Reasons for Judgment dated July 22, 2019 (collectively “the Judgment”) be removed from online access to the public and from online legal databases; and
(2) that the Judgment be amended by deleting the names and personal details of the parties and the parties’ children. In the Notice of Motion, the plaintiff highlighted the portions of the Judgment that she asks be deleted. Those deletions include: the names of the parties; the names of their children; the children’s dates of birth; the address of the former matrimonial home; the name of the respondent’s brother; the name of the applicant’s employer; her occupation; the language in which the respondent tutored; and portions of a statement, entered as an exhibit, that identifies the author of the statement.
[4] The essence of the grounds set out in the July 24, 2019 Notice of Motion is that the applicant wishes to keep the details of her and her family’s personal life away from the public, which, the applicant asserts, is not acceptable in her culture; the applicant is concerned that people may misuse the personal information; and that disclosure of identifying information will have a negative impact on the life of the applicant and her family.
[5] Similar grounds are set out in the July 26, 2019 Notice of Motion. However, the applicant also asserts that disclosure of the information will affect her children’s marriages, personal and social life and will have a negative impact on her personal and work life.
[6] The applicant did not provide any statutory authority or refer to any case law to support the relief sought on her motions.
Issues to be decided:
Should the Judgment be removed from online legal databases?
Should the Judgment be amended by replacing the parties’ names with initials and removing any other information that might identify the parties?
Litigation Background
[7] The applicant brought an application for a divorce and corollary relief relating to marriage breakdown. The application was commenced in 2017 and, as evidenced from the numerous court endorsements, the parties have had a number of motions and numerous court appearances. At trial, both acknowledged that theirs is high-conflict litigation.
[8] The parties were divorced prior to trial, and the divorce was not addressed in the Judgment. Also, the parties had resolved the issues of child custody and access. In fact, the eldest child had completed university prior to the commencement of trial and was no longer a child of the marriage for the purposes of support. This case does not involve young children: all of the parties’ three children are over the age of 18.
[9] The trial before me took place in Hamilton over a period of 13 days between January 14 and April 25, 2019. A further hearing will be required to determine the issue of costs.
[10] The relief requested followed the release of the Judgment and, to my knowledge, no previous requests for privacy have been made. At no time in the trial before me did the parties ever identify any personal risk or risk to their children if the names, ages and occupations, including places of employment of the parties, were referenced in the materials. As a matter of course, that information is important and, in a decision concerning the award of child support, the names of the children and their dates of birth is required. The trial was held in open court and open to members of the public.
The Law
[11] The parties have not provided any rule or case law in support of their Motions.
[12] I am not aware of any applicable statutory requirement that requires the court to maintain the confidentiality of the parties or of their children, as all have attained the aged of majority and none is a party under disability.
[13] My own research discloses that there is a body of case law that addresses the issues raised in the applicant’s motions. The cases do not support the granting of the relief sought on the motions.
[14] A request for an order sealing the entire motion record or, in the alternative, for an order prohibiting the publication of any information that would identify the applicant by name was considered by the Ontario Court of Appeal in M.E.H. v. Williams, 2012 ONCA 35. That case involved an application for a divorce and corollary relief brought against David Russell Williams (“Williams”). Williams was a colonel in the Canadian Forces and was charged with first-degree murder, sexual assault and forcible confinement, and 82 counts of break and enter. The court described the allegations as “stunning in their depravity.” Williams pleaded guilty to the charges and was sentenced to life imprisonment.
[15] There was widespread public interest in the criminal charges and prosecution of Williams. That interest generated intense media coverage. Williams’ criminal acts and the charges came as a shock to the applicant who learned for the first time that her husband was “a sexual predator and cold-blooded serial murderer.”
[16] In the Williams application to seal the court file, the court was provided with an affidavit from the applicant’s treating psychiatrist who identified a “real and substantial risk” to the applicant’s mental well-being if the media was allowed to identify her by name or to publish details of financial and personal information routinely found in divorce proceedings. The application granted by the trial judge was considered by the Court of Appeal.
[17] The motions judge made a sealing order and followed the two-step approach set out in a series of cases from the Supreme Court of Canada commonly referred to as the “Dagenais/Mentuck Test” and is stated 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; 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. (R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442 at para. 32)
[18] In Williams the applicant put forth evidence that pubic access to the court file could pose a risk to her mental health. Despite that evidence, the Court of Appeal granted the appeal from the order made by the lower court. In its reasons, the Court of Appeal referred to the analysis made by the lower court which recognized that the order sought was “an extraordinary one” which, if granted, would compromise the open court principle which the lower court described as “one of fundamental importance... to our democratic society.”
[19] Williams expanded upon the important features of the first branch of the Dagenais/Mentuck Test and the court stated that for a publication ban and related relief to be ordered: i) there must be a public interest at stake: the order must be necessary to prevent a serious risk to the proper administration of justice; and ii) the court must assess whether the serious risk to a public interest can only be addressed by some form of non-publication or sealing order.
[20] Williams requires that before applying the second part of the test, the court must be satisfied that there is, in fact, a serious risk. In assessing the seriousness of the risk, the appellate court stated:
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.
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. [citations omitted] (M.E.H. v. Williams at paras. 29-30)
Analysis
[21] On this motion, I have no expert evidence nor, indeed, any evidence that the publication of this decision has or will have any “serious debilitating physical or emotional harm,” as required to meet the test set out in Williams.
[22] There is no evidence that there has been any media interest in this case.
[23] The applicant identifies nothing unique about her case that might distinguish it from other proceedings in which the court has been asked to decide the usual issues corollary to divorce such as equalization of net family property and support.
[24] The applicant submits that divorce is not acceptable in her culture. Again, the issue of divorce was not before me on this trial and had been granted previously.
[25] Here, there is no concern about the evidence of harm to the administration of justice: the parties have had full and unfettered access to the courts which culminated in a 13-day trial.
[26] 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.” (see G.M. v. R.M., 2015 ONSC 4026)
[27] Likewise, this is not a case in which the contents of a court file involving a custody and access dispute involves parents of “great wealth and public profile” in which “identification of the parties and the child could put the child at serious risk of harm.” (see M.S.K. v. T.L.T., [2002] O.J. No. 4179 (SCJ), 2003 CanLII 27471 (ONCA))
[28] Similarly, the case here is distinguishable from the facts in C.M.G. v. R.G., [2012] O.J. No. 1884 (SCJ). In that case, the court ordered that the children and the parties be identified by their initials and sealed portions of the file. However, in making that order the court determined 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. (at para. 18)
[29] In C.M.G. v. R.G., the parties involved belonged to a high-profile family and the children were aged 12 and 13. Those facts are not present here.
[30] Free and open courts are a hallmark of our judicial system as protected under section 2(b) of the Canadian Charter of Rights and Freedoms (see L.C.F. v. G.F., 2016 ONSC 6732 at para. 15). Exceptional circumstances must exist to restrict this freedom.
[31] The applicant submits as part of the basis for the order sought is that in her culture, divorce is not acceptable. That may be true in other cultures too. Marriage breakdown occurs in families of all faiths and cultures and is, undoubtedly, painful and, at times, embarrassing for those involved. However, as stated in Williams, personal emotional distress and embarrassment cannot justify limiting publication of or access to court proceedings.
[32] I need look only to the submissions made by the applicant at trial to support the conclusion that robust access to reported cases is necessary to the proper administration of justice. In her closing submissions at trial, the applicant asked this court to consider decisions made in other cases involving Muslim couples who were seeking a divorce, equalization and child support as well as payment of a Maher.[^1] One such case also involved the custody of a very young child, allegations of severe and horrific spousal abuse.[^2]
[33] The two cases referenced by the applicant at trial, underscore the need for litigants and the court to have free and full access to court decisions so that the administration of justice in a common law jurisdiction may be administered appropriately and fairly and in keeping with current norms, jurisprudence, and binding judicial authority.
Disposition of the Motion
[34] For all the reasons set out above, the motion is dismissed. As it was brought on consent, no costs are awarded.
Sheard J.
Released: August 12, 2019
COURT FILE NO.: 744-17 DATE: 2019-08-12
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Abir Alsaid-Ahmad Applicant
– and –
Majd Jibrini Respondent
ENDORSEMENT – MOTION TO SEAL COURT FILE
LCS:co
Released: August 12, 2019
[^1]: Boustanji v. Barazi, 2017 ONSC 4261 and Salim v. Safdar, 2019 ONSC 200 [^2]: Salim v. Safdar, ibid.