Court File and Parties

Court File No.: 308/20 Date: 2021-02-19

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

M.P.K.B. Self-represented, with the assistance of Counsel, Ms. Rachel Law Applicant

- and -

K.B., R.B., B.B. and L.B. Self-represented Respondents

HEARD: in virtual chambers

Endorsement on Rule 14B Motion

Robertson J.

[1] The Applicant father requests an order by written 14B motion to seal the entire court record. The father wants to change a custody and access order, originally granted as a disposition in a child protection case. In order to apply, he must include a copy of the original order. That order identifies the children, meaning that, in the absence of a sealing order, his material will include their names and recount sensitive facts. He is worried he will commit a crime if I do not seal the file because it is illegal to publish identifying material in relation to a child protection proceeding.

Result:

[2] I grant an order sealing the entire Application. This order may be varied or discharged pursuant to the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (CLRA), s. 70.

Reasons:

[3] The original custody order was granted as a disposition in a child protection matter about three years ago. A custody order made as a disposition in a child protection matter is also considered to be an order for custody made under the CLRA. That means the father’s proposed Application to change is presented pursuant to the CLRA.

[4] Family Law Rule 15 requires the Applicant to attach the order he seeks to change to his Application to vary a final custody/access order made under the CLRA. That order clearly identifies the children and their family. His proposed materials will recount relevant historical information from the initial child protection proceeding for comparison with the current changed circumstances.

[5] This decision is not a comment on the merits of his Application. At this preliminary stage, I have no information about the earlier proceeding and cannot assess if there has been a change since that final order.

[6] Child protection orders and proceedings are private and closed. It is against the law to publish identifying information contained in a child protection proceeding. Meanwhile, custody orders granted under the CLRA are public and open. Because of this contrast in legally mandated privacy settings between the two types of proceedings, the father seeks direction by written 14B motion before he files his Application. His materials, including the original order, would publish identifying information about children from the child protection matter.

[7] The circumstances and legislative path are summarized this way:

• Three years ago, a final order for custody of the children was granted to different sets of grandparents to resolve a child protection case. This is the order the Applicant father wishes to change.
• That initial order was granted as a disposition in a child protection matter pursuant to Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (CYFSA), s. 102 (then s. 57.1 of the Child and Family Services Act, R.S.O. 1990, c. C.11 [CFSA]). It is considered a CLRA s. 28 order. The father’s Application for custody, therefore, also falls under Part III the CLRA, s. 21.
• Child protection orders are private. The Legislation restricts publication of identifying information in an Order made under section 57.1 of the CFSA (now s.102(1) of the CYFSA; s. 87(8) of the CYFSA creates the prohibition).
• That procedural privacy protection does not apply to an application or variation of a custody order generally made under the CLRA. It is only cases such as this, where the initial order is made under the CYFSA, which protect the identity of the children.
• The public may access a court application under the CLRA.
• Section 70 of the CLRA authorizes a court to limit access to the court records or keep identifying information confidential. Section 70(2)(b) directs the court to consider the effects of not making an order under that section.
• Once the documents are before the court, the open court principle ought to be considered, as outlined in Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41 to decide whether an important interest would be protected by a sealing order, after the legislative protections are followed. It is open to the court to consider whether alternative measures (for example, initializing the names: Danso) would be sufficient to protect the children’s interests.

[8] Pre-pandemic paper files are not uploaded to the current electronic court filing system. There are evolving electronic filing policies and procedures since the pandemic. It is uncertain who can access civil files in an open court cyber system, now and in the future. Could child safety risks increase by cyber filing child protection documents in a public forum? Given this uncertainty, a cautious approach is appropriate. A child’s vulnerability and privacy protection must be safely guarded.

[9] The closed court privacy requirements of child protection cases, and the open and transparent court principles of civil custody law intersect in the context of this case, and others like it: instances where a party seeks variation of a custody order made as a child protection disposition. I do not find such intersection to be in conflict. Essentially, the father worries he cannot abide by both Rule 15(20) of the Family Law Rules to attach a copy of the order he wants changed without breaching section 87(8) of the CYFSA, which prohibits identification of children and their families if he brings his Motion to Change.

[10] Bolstering the authority to seal the file is CLRA s. 70. Section 70(2) directs the court to consider the nature and sensitivity of the information contained in the documents. In P.P. v. D.D., 2016 ONSC 256 at para. 5, Perrell J. concluded that a court can make an order under s. 70 on its own initiative.

[11] Child protection cases include highly sensitive details about the vulnerabilities of children, their identity information and often particulars of family dysfunction. The law has enacted special protection of such documents pursuant to CYFSA section 87(8). Until the pleadings and supporting materials are filed, the court cannot guess whether material supporting the variation of an order made in a child protection matter should be open to the public. Layering this concern is the unknown consequence of cyber access to court files in a changing system.

[12] In A.P. v. L.K., 2019 ONSC 4010, Akbarali J. discussed the balance to be struck between the open court principle and children’s privacy interests. In considering the Sierra Club test, at para. 36, Justice Akbarali stated that “[p]ermitting 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. Moreover, children are a particularly vulnerable group; their vulnerability may put them at greater risk of harm if their interests are not adequately protected.”

[13] Justice Spies, in Himel v. Greenberg, 2010 ONSC 2325 at para 49, stated that “[w]here the sealing order relates to the personal information of a child, the best interests of the child is a value of super-ordinate importance that can override the open court principle”. In support of that proposition, Spies J. cited the 2003 Ontario Court of Appeal decision, K.(M.S.) v. T.(T.L.), 168 O.A.C. 73, at paras. 10-11, where the Court of Appeal sealed the entire court file, because it was in the best interests of the child to do so.

[14] I find that at this early stage, this Application should be sealed in its entirety. Once the parties’ materials are filed, the Court will be able to determine if the sealing order should continue, be varied or discharged. Until then, the father’s concern is legitimate.

Endorsement

[15] The following documents shall be sealed:

(a) The Applicant's Form 15: Motion to Change; (b) The Order of Justice Swartz, dated August 21, 2017; (c) The Applicant's Form 35.1: Affidavit in Support of a Claim for Custody or Access; (d) The Form 6B: Affidavit of Service, proving service of the Motion to Change Materials on Family and Children's Services; (e) The Applicant's Form 14B Motion; (f) The Applicant's Form 14A: Affidavit; (g) This Form 14B Motion; (h) The Applicant's Form 14A: Affidavit; (i) Any materials filed in response to the Applicant's Motion to Change; (j) Any other document already in this file or which may be later added to this file, which has the effect of identifying the children in this matter as having been involved in a child protection matter, contrary to s. 87(8) of the Child, Youth and Family Services Act.

[16] Access to the sealed documents within the court file shall be limited to:

(a) the parties; (b) their counsel, if any; (c) counsel, if any, representing the children; (d) the court and authorized court employees.

Robertson, J. Released: February 19, 2021