Court File and Parties

COURT FILE NO.: FS-20-16399 DATE: 20200811 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: S.M., Applicant AND: C.T. and P.C., Respondents

BEFORE: Nishikawa J.

COUNSEL: Shannon Beddoe, for the Applicant Amanda Taerk, for the Respondents

HEARD: August 6, 2020 (By teleconference)

Endorsement

Overview

[1] The Respondents, C.T. and P.C., bring a motion for an order initializing the names of the parties and children in this proceeding.

[2] The Respondents have been married for 15 years and are the parents of three children, who will be referred to as A.A. (5 years old), B.B. (11 years old), and C.C. (14 years old).

[3] The Respondent mother, C.T., was in a long-term, extra-marital affair with the Applicant, S.M. From late 2014 to December 2019, C.T. told S.M. that he was the father of her youngest child, A.A. This was false, as confirmed by a paternity test taken in March 2020. The Respondent father, P.C., is the biological father of all three children. Until April 2020, unbeknownst to P.C., C.T. and A.A. spent time with the Applicant almost weekly.

[4] After C.T. ended the Applicant’s access to A.A. in April 2020, the Applicant commenced an application for a declaration of parentage, joint custody, and access. On July 24, 2020, Nakonechny J. granted the Applicant’s motion for interim access to A.A. The facts of this case are detailed thoroughly in Nakonechny J.’s endorsement.

[5] The Respondents seek an order protecting the identities of the children and parties through the use of initials. They do not seek a sealing order or publication ban. Notice to the media of the Respondents’ motion was provided.

[6] The Applicant consents to the protection of the children’s identities and takes no position as to what initials should be used. He opposes the initialization of the parties’ names.

[7] The issue to be determined is whether the Respondents have met the test for an order initializing the parties’ and the children’s names.

[8] For the reasons that follow, the motion is granted.

Analysis

Preliminary Matters

[9] A preliminary issue arose regarding the evidentiary record before me on this motion. The Respondents sought an order striking the affidavits sworn by the Applicant in support of the access motion on the basis that they were irrelevant and excessive. Applicant’s counsel stated that she did not intend to rely on those affidavits on this motion but had refiled them to assist the court.

[10] As a result, I directed Applicant’s counsel to withdraw from the record on this motion the affidavits filed by the Applicant on the access motion. The evidence before me on this motion is thus limited to:

• The affidavits of C.T. and P.C., both sworn July 27, 2020;
• The affidavit of S.M., sworn July 30, 2020; and
• The reply affidavits of C.T. and P.C., sworn August 4, 2020.

The Dagenais/Mentuck Test and Section 70 of the Children’s Law Reform Act

[11] The open court principle is a “hallmark of a democratic society” which “has long been recognized as a cornerstone of the common law”: Vancouver Sun (Re), [2004] 2 S.C.R. 332, [2004] S.C.J. No. 41, 2004 SCC 43, at paras. 23-24. The presumption that courts are open is fundamental to our justice system and is protected under s. 2(b) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982 being Schedule B to the Canada Act 1982 (U.K.) 1982, c. 11.

[12] The freedom of the press to report on judicial proceedings, and the right of the public to receive information have also been found to be protected by the constitutional guarantee to freedom of expression: Re Vancouver Sun, 2003 SCC 43, [2004] 2 S.C.R. 332, at para. 26.

[13] In all cases where the courts are asked to exercise their discretion to order that public access to a file or proceeding be restricted, the test articulated by the Supreme Court of Canada in Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, [1994] S.C.J. No. 104 and R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442 applies. The Dagenais/Mentuck test requires that the party seeking an order restricting access to judicial proceedings or files establish that:

(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.

[14] The Respondents’ motion also engages s. 70 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, which permits judges to exercise their discretion to limit the open court principle. Section 70 states:

70. (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.

(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.

[15] As noted by Harvison-Young J. (as she then was) in L.C.F. v. G.F., 2016 ONSC 6732, at para. 20, s. 70 of the CLRA allows the court, when exercising its discretion, to take into consideration the best interests of the child and their particular circumstances. Therefore, any exercise of discretion within the family law context must be exercised in accordance with the factors articulated in s. 70 and the constitutional constraints of the Dagenais/Mentuck test: L.C.F. v. G.F., at paras. 16-17.

Have the Respondents Met the Dagenais/Mentuck Test?

[16] Based on the principles stated above, the court must satisfy itself that its discretion ought to be exercised to protect both the children’s and the parties’ identities. Although the Applicant consents to initializing the children’s identities, the court must nonetheless satisfy itself that the test is met.

[17] The Respondents submit that the children’s and the parties’ identities should be protected because there is a serious risk of emotional harm to the children if they, either directly or indirectly, discover the details of this case in an “unsafe” manner or environment, on their own or through third parties, before they are old enough to process the information. They argue that the facts of this case are unique and salacious enough that they would attract interest, and this could result in the children being treated differently by others in the community.

[18] The Applicant submits that the Respondents have not met the stringent test for limiting the open court principle and that fairness and the public interest outweigh their desire to avoid personal embarrassment.

Is an order necessary to prevent a serious risk to the proper administration of justice?

[19] Section 70 of the CLRA recognizes the important public interest in protecting vulnerable children from suffering trauma caused by their parents’ legal proceedings. As stated by Akbarali J. in A.P. v. L.K., 2019 ONSC 4010, at para. 36, “permitting limits to the open court principle when necessary to protect the interests of children recognizes that children who are the focus of family law proceedings do not choose to be involved in those proceedings and, for the most part, have no ability nor agency to protect their own interests.”

[20] In L.C.F. v. G.F., at para. 47, Harvison-Young J. found that the privacy interests of children can be sufficient to justify some limits on the open court principle.

[21] In this case, given the children’s ages, I find that the discovery of the underlying facts of this case on their own or through third parties could cause them mental or emotional harm. It would be difficult for them to understand or process if they were to discover the facts in a manner other than one that had their best interests at heart. Moreover, the potential harm to the children is more than speculative. B.B. and C.C. are of an age where children access the internet and could Google search their own or their parents’ names.

[22] In addition, if third parties are able to identify the children, the children may be subject to stigmatization, ridicule, or ostracization. This would cause them further emotional harm.

[23] While the Applicant submits that the Respondents have failed to provide evidence of actual harm that would occur if the motion is not granted, s. 70(2)(b) requires the court to consider “whether not making an order could cause physical, mental or emotional harm” which would include potential, and not only actual, harm.

[24] I do not accept the Applicant’s view that the children would not be subject to any harm because only the adults’ conduct that is at issue. The children, especially A.A., are inextricably linked to this dispute and the underlying deception, which has put their intimate family relationships at risk. Children are deeply connected to their parents and to their parents’ behaviour. The children may feel worry, shame, embarrassment or humiliation as a result of the conduct at issue here, even if it is not their own.

[25] Contrary to the Applicant’s view, the facts are not of a nature that frequently arise in a family law dispute. C.T. has admitted to deceiving the Applicant over a course of years into believing that he was A.A.’s father in order to maintain her relationship with the Applicant. She maintained a double life, remaining married and raising the children with P.C., while fostering a relationship between the Applicant and A.A. It would be potentially traumatizing to the children, especially A.A., to discover that their mother constructed this sustained deception that centered on A.A. Discovering this information could cause them emotional or psychological harm to the children. See P.P. v. D.D., 2016 ONSC 256.

[26] Based on the nature and sensitivity of the information contained in the documents relating to the application, and the potential mental or emotional harm to the children of not making an order, I find that the requirements of s. 70(2) of the CLRA have been met.

[27] Similarly, I find that the first element of the Dagenais/Mentuck test is also satisfied. An order initializing the parties’ and the children’s identities is necessary to prevent a serious risk to the administration of justice, the public interest in protecting vulnerable children from potential trauma caused by their parents’ legal proceedings.

[28] Moreover, reasonable alternative measures will not prevent the risk. The alternative here is to initialize only the children’s names, which would not sufficiently address the risk of harm to the children. The Respondents have shown that because of their distinctive names, they are easily found by a Google search. Once a parent is identified, the children are easily identifiable. In A.P. v. L.K., at para. 55, Akbarali J. initialized the mother’s name to protect the children’s identities because publishing the mother’s name could identify the children, at least in their local community “where they are at greatest risk for being ostracized and stigmatized.” In this case as well, an order initializing both the parties’ and the children’s names is necessary to prevent the risk.

[29] I note that the Respondents have given evidence about the potential negative consequences on their privacy, employment, and how they are viewed in the community if an order is not granted. My finding of a serious risk is based solely on the risk of harm to the children and the public interest in protecting them from that risk. If only the Respondents’ interests were at issue, the first branch of the Dagenais/Mentuck case would not be met. See Foulidis v. Foulidis, 2016 ONSC 6732, at paras. 36-37.

Do the salutary effects of an order outweigh the deleterious effects?

[30] In this case, the Applicant argues that protecting the parties’ identities would negatively impact on the fairness of the proceeding, and therefore the administration of justice in the following ways: (i) it would decrease C.T.’s sense of accountability to the court; and (ii) it would further the Respondents’ goal of erasing the Applicant from A.A.’s life, which could cause him substantive prejudice in this proceeding.

[31] Needless to say, the court must safeguard the fairness of its process. While openness is one means of ensuring truthfulness, and therefore, fairness, the court’s processes afford various mechanisms to ensure that parties are honest and accountable. It is speculative to suggest that initializing the parties’ identities would cause or encourage C.T. to be dishonest. Moreover, C.T. has admitted her deceit; the consequences of dishonesty cannot be lost on her.

[32] The Applicant suggests that initializing the parties’ identities has the perverse effect of “rewarding” C.T. for the gravity of her deception. The purpose of the order is not to reward C.T. or to allow her to avoid accountability. It is to protect the children from the risk of harm. The necessity of protecting the children from potential harm outweighs the public accountability that the Applicant seeks.

[33] The Applicant submits that in this case, the Respondents’ request for initialization aligns with their substantive position in the litigation to deny his relationship with A.A. and that this impacts on the fairness of the proceeding. In my view, this concern overstates the impact of the order sought. Replacing the parties’ names with initials does not “erase” the Applicant from the proceeding or from A.A.’s life. In fact, any risk of excluding the Applicant from A.A.’s life while this proceeding is pending is addressed by the interim access order of Nakonechny J. The Applicant’s actual access to A.A. is far more significant than the title of these proceedings.

[34] The Applicant further submits that an order protecting the parties’ identities is not in the children’s interests because it could send them a message that the facts of this case are embarrassing or shameful. In the Applicant’s view, this case is about three parents who love A.A. and wish to be involved in his life. This characterization, however, fails to recognize that the dispute arises from a long deception perpetrated by the children’s mother around A.A.’s parentage, the discovery of which could cause them emotional or mental harm. An initialization order is intended to protect the children from such harm.

[35] Finally, the Applicant argues that an order initializing the parties’ and children’s identities, where the very issue is deception, would set a negative precedent. However, the case law is clear that motions for protective orders are to be granted on a case by case basis based on the particular circumstances of the case.

[36] In weighing the salutary effects against the deleterious effects of an order in this case, it is also relevant that the proposed order is limited in nature. The Respondents seek only that the parties and the children be referred to by initials. They are not seeking to protect any other information, including the children’s ages or genders. The underlying facts of the case and all information in the court file remain available to the public. This ensures minimal intrusion on the open court principal and Charter protected rights. See: R. (M.R.) v. M. (J.), 2017 ONSC 2655.

[37] Unlike Danso v. Bartley, 2018 ONSC 4929, the public interest in knowing the identities of the parties in this proceeding is limited because none of the parties is a public figure.

[38] Accordingly, I find that the salutary effects of the order sought outweigh the deleterious effects on the rights and interests of the parties and the public, including freedom of expression, trial fairness, and the administration of justice.

Conclusion

[39] For the foregoing reasons, the motion is granted.

[40] Issues about the Applicant’s access to A.A. under Nakonechny J.’s order were raised before me. While it should not be necessary to do so, I reiterate that the parties are expected and required to comply with orders of this court.

Costs

[41] At the end of the hearing, I directed counsel to submit their costs outlines. The Respondents’ costs total $12,848.10 on a full indemnity basis. The Applicant’s costs were $6,152.85 on a full indemnity basis. All amounts include disbursements and HST.

[42] The overall objective in determining costs is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case: Boucher v. Public Accountants Council of Ontario, [2004] O.J. No. 2634 (C.A.), at para. 24. There is a presumption that the successful party will be entitled to costs: r. 24(1), Family Law Rules, O. Reg. 114/99.

[43] Other than as provided in rr. 24(8) or 18(14), neither of which apply here, no provision in the Family Law Rules provides for a general approach of “close to full recovery” costs: Beaver v. Hill, 2018 ONCA 840, at para 11. The factors to consider in determining the appropriate quantum of costs are found in r. 24(12).

[44] The Respondents were successful on the motion. While the issue to be determined was of importance to both parties, a disproportionate volume of material was filed by both parties for a one-hour motion and in view of current constraints where materials are filed and read electronically. Applicant’s counsel refiled the material from the access motion, which was hundreds of pages in length. Respondents’ counsel served reply affidavits less than two days before the hearing, which then resulted in the Applicant serving a supplementary factum. This type of disproportionate litigation to be avoided at all times, but especially when operating under pandemic constraints. I further note that some of the Respondents’ evidence related to the access ordered by Nakonechny J., which was not only irrelevant to this motion but also inappropriate.

[45] Based on the foregoing, the Respondents are entitled to costs of the motion on a partial indemnity basis, which I fix at $4,000, including disbursements and HST.

Order to go as follows:

(a) The parties to this proceeding shall be referred to by their initials as follows: S.M. for the Applicant; C.T. for the Respondent mother; and P.C. for the Respondent father;

(b) The children’s names shall be initialized, from youngest to eldest, as A.A., B.B., and C.C. and the child at issue shall be referred to as either A.A. or “the child” in any materials filed with the court;

(c) The title of proceedings shall be amended to refer to the parties by initials as follows: S.M., Applicant and C.T. and P.C., Respondents;

(d) Any decisions, orders or other documents made public in this proceeding shall refer to the parties and the children solely by their initials;

(e) The Registrar of the Superior Court of Justice is directed to amend the records accordingly; and

(f) The Applicant shall pay $4,000 in costs of the motion to the Respondents.

[46] This endorsement is effective immediately as an order of the court. Counsel may submit an approved draft order for my signature.

Nishikawa J. Date: August 11, 2020