WARNING
This case is subject to subsections 87(8) and 87(9) of the Child, Youth and Family Services Act, 2017. These subsections and subsection 142(3) of the Child, Youth and Services Act, 2017, which deals with the consequences of failure to comply, read as follows:
87(8) Prohibition re identifying child — 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.
(9) Prohibition re identifying person charged — 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.
142(3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
COURT FILE NO.: CV-15-109
DATE: 20191216
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: AA, Plaintiff
AND:
BB and CC, Defendants
BEFORE: J.C. Corkery J.
COUNSEL: AA, self-represented BB, not appearing CC, self-represented Andrea Luey for the intervenor, Justice for Children and Youth
HEARD: October 18, 2019 and November 12, 2019
Amended ENDORSEMENT
Amended decision: The text of the original judgment was amended on July 21, 2020 and a description of the amendment is appended.
[1] Should the names of parties in a civil decision be de-anonymized where doing so could identify parents and children involved in a child protection investigation?
[2] The plaintiff, after protracted litigation, was ultimately successful in obtaining judgment against both defendants for making a false report about the plaintiff to the Kawartha Haliburton Children’s Aid Society. I found that the defendants conspired together to slander the plaintiff and intentionally inflict emotional distress upon him (AA v. BB and CC, 2018 ONSC 4173). During the trial, on December 4, 2017, I ordered that no information or evidence relating to the proceeding could be disclosed that could identify a child referred to in the evidence. The decision used initials to refer to the parties and children.
[3] The plaintiff brings this motion seeking to amend have the judgment amended to replace the initials of the parties with their names. The plaintiff submits that s. 45 of the Child and Family Services Act, R.S.O. 1990, c. C.11, “the Act” (now s. 87 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, “the new Act”) does not apply to the judgment in this case, as the prohibition against publication or making public information in ss. 45(8) is limited by ss. 45(2) to hearings held under the Child Protection part of the Act.
[4] On October 28, 2019, I ruled against the plaintiff. I held that prohibition contained in ss. 45(8) did apply to my judgment in this matter.
[5] The relevant subsections of s. 45 read as follows (the wording has not changed in the new Act):
(2) This section applies to hearings held under this Part, except hearings under section 76 (child abuse register).
(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.
[6] The plaintiff argues that this case did not involve a “hearing” or a “proceeding” as those words are used in the Act. This case concerned a report that was false. The Society closed its file after its initial investigation. A proceeding was never commenced under the Act. A hearing was never held.
[7] Section 85(3) makes contravention of 45(8) an offence. The prohibition is not discretionary. It is mandatory and cannot be waived M.(Y.) v. Beaman, 2016 ONSC 7118 at para.11).
[8] The paramount purpose of the Act is stated in the very first paragraph:
1 (1) The paramount purpose of this Act is to promote the best interests, protection and well being of children.
[9] I agree with the submission made by the Justice for Children and Youth. Section 45(8) must be interpreted in a way that gives full and meaningful effect to this paramount purpose, which must include the comprehensive protection of children’s privacy. Promoting “the best interests, protection and well being of children” does not provide for a balancing of interests where other parties interests are not aligned or may be in conflict with the best interests of an involved child.
[10] Every child protection matter is concerned with the most intimate and private details of a child’s life. At the outset, a child protection worker will gather and record this information from many sources, often including the child himself or herself. A strict interpretation of section 48, limiting its application to a “proceeding” or “hearing” as it might be narrowly construed, would frustrate the paramount purpose of the Act.
[11] A child’s privacy interest is protected by s. 45 (now s. 87) at every stage of a child protection matter, including the initial report, the subsequent investigation and any hearing. I can see no exception to the prohibitions contained therein.
[12] The matter is adjourned to December 18, 2019 at 9:30 a.m. for further submissions as what amendments, if any, are required with respect to my judgment and any related decisions.
J.C. Corkery J.
Date: December 16, 2019
Appendix
Amendments made July 7, 2020:
In accordance with the order made June 1, 2020 (AA v. BB and CC, 2019 ONSC 3423):
the endorsement was amended to use the letters AA, BB and CC in place of the names or initials of parties, and
the warning was added.