COURT FILE NO.: FC1940/11-1 DATE: March 9, 2022

ONTARIO SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

S.E.L. Toenie Hersch for the applicant Applicant

- and -

O.V.P. Leonard G. Reich for the respondent Therese Landry for the Children’s Lawyer Respondent

HEARD: October 28, 2021

MITROW J.

INTRODUCTION

[1] The sole remaining issue in this trial is whether the court should impose a publication ban and make an order sealing the file.

[2] A related procedural issue is whether the court should dispense with the requirement to provide notice to the media regarding the request for a publication ban and a sealing order.

[3] For reasons that follow, a sealing order and publication ban are granted on terms as specified in the order below.

LITIGATION HISTORY

[4] The applicant and respondent, respectively, are the mother and father of 3 children, who were ages 12, 13 and 15 at the commencement of this trial on September 13, 2021.

[5] This proceeding is a motion to change commenced by the respondent (“the father”) in August 2017. The father sought a substantive change to the existing final order dated May 6, 2014.

[6] Pursuant to the final order, in relation to parenting issues, the applicant (“the mother”) was awarded sole custody (now decision-making responsibility) of all the children. The provisions in the final order relating to parenting also provided for the father to have parenting time with all the children as specifically set out in the order, with the regular schedule to include alternate weekends and some defined weekday parenting time.

[7] The father was the first trial witness. At the commencement of the third day, the father indicated through his counsel that he did not wish to proceed any further with this case. At that point, the father was being cross-examined by the applicant’s counsel.

[8] Given the father’s decision not to proceed any further, the matter was stood down and counsel were given an opportunity to have discussions to arrive at a potential consent order.

[9] The parties were able to arrive at a consent for a final order and, on September 15, 2021, the court gave oral reasons for judgment based on the evidence, including exhibits, before the court.

[10] The final order provided for the motion to change to be dismissed, but subject to some changes. The changes included that the father’s parenting time with all three children would be subject to the wishes of the children. An existing paragraph in the final order, which required the mother to provide brief weekly updates to the father regarding the children’s welfare, was deleted and replaced by a provision requiring the mother to sign any necessary directions to allow the father to obtain medical and educational information regarding the children.

[11] The order provided for the parties to be able to arrange counselling for the children and for the counselling also to include counselling between the father and any of the children. The counselling was subject to the desire of each child to attend counselling.

[12] Finally, both parties were ordered not to allow any form of contact between the children and a person known to the children. Throughout these reasons, this person is referred to as “X”.

[13] In relation to the issues of a publication ban, sealing order and whether notice to the media should be given pursuant to the provincewide direction, counsel for both parties and counsel for the Office of the Children’s Lawyer (“OCL”) were requested to provide statements of law, and an adjournment was granted to allow counsel an opportunity to do so.

[14] Pending the adjournment, an interim order was made providing for a publication ban pursuant to s. 70(1)(b) of the Children's Law Reform Act, R.S.O. 1990, c. C.12 and, further, an interim order was made that access to the file is limited to the court, authorized court employees, counsel for both parties and OCL counsel.

[15] On October 28, 2021, the court heard argument on the request for a publication ban and the sealing order. The decision was reserved and, pending release of the decision, an order for non-publication and limiting persons who could access the file was made on the same terms as the previous interim order made on September 15, 2021.

RELEVANT BACKGROUND

[16] The father’s motion to change was precipitated primarily by the father’s allegation that the mother failed to protect the children from X.

[17] In 2017, X was arrested and charged with sexual interference, invitation to sexual touching and sexual assault, resulting in proceedings against X pursuant to the Youth Criminal Justice Act, S.C. 2002, c. 1 (“YCJA”). The victim of the offences alleged was one of the children.

[18] In addition, there is evidence that one of the other children also was abused sexually by X, although the evidentiary record does not disclose whether X was charged with any offences relating to this child.

[19] The pleadings and documentary evidence described the acts perpetrated against both children by X. The documentary evidence includes children’s aid society records filed as exhibits. These records include summaries of interviews with all three children.

[20] On June 30, 2021, Nicholson J. released a decision regarding this proceeding in relation to the father’s request to obtain records from the YCJA proceeding regarding X. That decision indicated that the father had applied to the Ontario Court of Justice as required by the YCJA to obtain record disclosure. The Ontario Court of Justice ordered access to some of the records, with redactions, and these records were forwarded to this court and were reviewed by Nicholson J. to determine which of those documents should be produced pursuant to r. 19(11) of the Family Law Rules, O. Reg. 114/99, which deals with production of documents in the control of a non-party.

[21] Nicholson J. ordered only one document to be produced, which was a transcript of the mother’s witness statement given to the police and Nicholson J. also ordered that that statement be further redacted. Terms and conditions were imposed relating to the production of the transcript. The material filed on the motion and a copy of the decision were ordered to be sealed, with access to the documents to be limited to the parties, their counsel, OCL counsel and the court.

[22] The redacted witness statement of the mother ordered to be produced by Nicholson J. was filed as an exhibit in the current trial.

THE LAW

(i) Statutory Provisions

[23] The sealing of court files is permitted by s. 137(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43. Section 137 states:

137 (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.

Court lists public

(3) On payment of the prescribed fee, a person is entitled to see any list maintained by a court of civil proceedings commenced or judgments entered.

Copies

(4) On payment of the prescribed fee, a person is entitled to a copy of any document the person is entitled to see.

[24] The parenting provisions in the present case have been ordered pursuant to the Children's Law Reform Act. Section 70 of that Act deals with limiting access to a court file, including a non-publication order. Section 70 states:

Confidentiality

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.

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).

(ii) Jurisprudence

[25] The open court principle is engaged in the case at bar. Dagenais v. Canadian Broadcasting Corp., 1994 CarswellOnt 112 (S.C.C.) and R. v. Mentuck, 2001 SCC 76, 2001 CarswellMan 535 (S.C.C.) are important Supreme Court of Canada decisions on this issue.

[26] In Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, the Supreme Court of Canada summarized the two-step tests in Mentuck and Dagenais as to whether a confidentiality order can be granted:

1. the order must be necessary to prevent a serious risk to an important interest in the context of litigation because reasonably alternative measures will not prevent the risk; and

2. the salutary effects of the confidentiality order should outweigh its deleterious effects.

In Sierra, which involved civil litigants and commercial interests, the foregoing summary was discussed, at para. 53:

53 Applying the rights and interests engaged in this case to the analytical framework of Dagenais and subsequent cases discussed above, the test for whether a confidentiality order ought to be granted in a case such as this one should be framed as follows:

A confidentiality order under R. 151 should only be granted when:

(a) such an order is necessary in order to prevent a serious risk to an important interest, including a commercial interest, in the context of litigation because reasonably alternative measures will not prevent the risk; and

(b) the salutary effects of the confidentiality order, including the effects on the right of civil litigants to a fair trial, outweigh its deleterious effects, including the effects on the right to free expression, which in this context includes the public interest in open and accessible court proceedings.

[27] In the recent case of Sherman Estate v. Donovan, 2021 SCC 25, the Supreme Court of Canada recast the two-step inquiry, stating that the test rests upon three prerequisites, at para. 38:

38 The test for discretionary limits on presumptive court openness has been expressed as a two-step inquiry involving the necessity and proportionality of the proposed order ( Sierra Club, at para. 53). Upon examination, however, this test rests upon three core prerequisites that a person seeking such a limit must show. Recasting the test around these three prerequisites, without altering its essence, helps to clarify the burden on an applicant seeking an exception to the open court principle. In order to succeed, the person asking a court to exercise discretion in a way that limits the open court presumption must establish that:

(1) court openness poses a serious risk to an important public interest;

(2) the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and,

(3) as a matter of proportionality, the benefits of the order outweigh its negative effects.

Only where all three of these prerequisites have been met can a discretionary limit on openness — for example, a sealing order, a publication ban, an order excluding the public from a hearing, or a redaction order — properly be ordered. This test applies to all discretionary limits on court openness, subject only to valid legislative enactments (Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41, [2005] 2 S.C.R. 188, at paras. 7 and 22).

[28] A person’s right to privacy can constitute an important public interest. However, only specific aspects of privacy interests can qualify as important public interests (Sherman, at para. 49). Aspects of privacy, such as dignity, can constitute important public interests in and of themselves; a risk to personal privacy may be tied to a risk of psychological harm (Sherman, at para. 54).

[29] In relation to a person’s privacy right and their dignity, it must be shown that their dignity is at “serious risk.” A person must show that the information in the court file is sufficiently sensitive that it strikes at the individual’s biographical core and the individual will suffer an affront to their dignity without an exceptional order. This is stated in Sherman, at para. 35:

35 I hasten to say that applicants for an order making exception to the open court principle cannot content themselves with an unsubstantiated claim that this public interest in dignity is compromised any more than they could by an unsubstantiated claim that their physical integrity is endangered. Under Sierra Club, the applicant must show on the facts of the case that, as an important interest, this dignity dimension of their privacy is at "serious risk". For the purposes of the test for discretionary limits on court openness, this requires the applicant to show that the information in the court file is sufficiently sensitive such that it can be said to strike at the biographical core of the individual and, in the broader circumstances, that there is a serious risk that, without an exceptional order, the affected individual will suffer an affront to their dignity.

[30] Without providing an exhaustive catalogue on the range of sensitive personal information that could rise to a serious risk if exposed, an example includes subjection to a sexual assault or harassment (Sherman, at para. 77).

[31] In A.B. (Litigation Guardian of) v. Bragg Communications Inc., 2012 SCC 46, a 15-year-old girl in Nova Scotia was subjected to a Facebook posting containing her picture and unflattering commentary about the girl’s appearance, along with sexually explicit references. The girl brought an application for a disclosure order against the internet service provider to assist in identifying the person who made the Facebook posting, an order to proceed with her application anonymously and an order for a publication ban.

[32] The court in which the application was first returnable denied the request for anonymity and the publication ban on the basis that there was insufficient evidence of specific harm to the girl (at para. 5). The Court of Appeal upheld this decision primarily on the ground that the girl had not discharged the onus of showing that there was real and substantial harm to her justifying restricting access to the media (at para. 7).

[33] In A.B., the Supreme Court of Canada allowed the appeal to the extent of allowing the girl to proceed anonymously; the publication ban was denied on the basis that her identity was protected by proceeding anonymously (at para. 9).

[34] In A.B., the interests justifying a restriction on court openness were said to be privacy and the protection of children from cyberbullying (at para. 13). The court, at para. 14, states, in part:

14 The girl's privacy interests in this case are tied both to her age and to the nature of the victimization she seeks protection from. It is not merely a question of her privacy, but of her privacy from the relentlessly intrusive humiliation of sexualized online bullying [citation of publications omitted].

[35] While evidence of a direct harm to an individual is relevant, courts may also conclude that there is objectively discernible harm (A.B., at para. 15). Further, in A.B., at para. 17, the inherent vulnerability of children was recognized, reference was made to various legislation protecting a child’s right to privacy, including the United Nations Convention on the Rights of the Child, Can T.S. 1992 No. 3, all based on age and not the sensitivity of the particular child:

17 Recognition of the inherent vulnerability of children has consistent and deep roots in Canadian law. This results in protection for young people's privacy under the Criminal Code, R.S.C. 1985, c. C-46 (s. 486), the Youth Criminal Justice Act, S.C. 2002, c. 1 (s. 110), and child welfare legislation, not to mention international protections such as the Convention on the Rights of the Child, Can. T.S. 1992 No. 3, all based on age, not the sensitivity of the particular child. As a result, in an application involving sexualized cyberbullying, there is no need for a particular child to demonstrate that she personally conforms to this legal paradigm. The law attributes the heightened vulnerability based on chronology, not temperament: See R. v. B. (D.), 2008 SCC 25, [2008] 2 S.C.R. 3 (S.C.C.), at paras. 41, 61 and 84-87; R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45 (S.C.C.), at paras. 170-74. [emphasis in original]

[36] In A.B., at para. 26, the court states:

26 Studies have confirmed that allowing the names of child victims and other identifying information to appear in the media can exacerbate trauma, complicate recovery, discourage future disclosures, and inhibit cooperation with authorities. [citation of publications omitted]

[37] R. v. Jarvis, 2019 SCC 10, involved the case where Mr. Jarvis was charged with voyeurism under s. 162(1) of the Criminal Code (R.S.C., 1985, c. C-46). Mr. Jarvis used a camera concealed in a pen to make video recordings of female students at the high school where he was a teacher. In order for an offence to have been committed under s. 162, a person has to observe or make a visual recording of another person “in circumstances that give rise to a reasonable expectation of privacy.” In the context of that case, it was held that Canadian law provides children with greater privacy rights that similarly situated adults, which evidences a societal consensus on the shared value of protecting children’s privacy. The following is stated, at para. 86:

86 The fact that all of the students were young persons, and that some of them were minors, is a circumstance that further supports the finding of a reasonable expectation of privacy. As has been acknowledged by this Court, the values that underlie privacy "apply equally if not more strongly in the case of young persons": A.B. (Litigation Guardian of) v. Bragg Communications Inc., at para. 18, quoting, Toronto Star Newspaper Ltd. v. R., 2012 ONCJ 27, 255 C.R.R. (2d) 207 (Ont. C.J.), at para. 41 (emphasis deleted); see also R. v. M. (M.R.), at para. 53. That Canadian law provides children with greater privacy rights than similarly situated adults in a number of contexts evidences a societal consensus on this point, and on the shared value of protecting children's privacy: see B. Jones, "Jarvis: Surely Schoolchildren Have A Reasonable Expectation of Privacy Against Videotaping for a Sexual Purpose?” (2017), 41 C.R. (7th) 71; A.B. (Litigation Guardian of) v. Bragg Communications Inc., at para. 17, citing the Criminal Code, s. 486, and the Youth Criminal Justice Act, S.C. 2002, c. 1, s. 110.

[38] In Ontario (Children’s Lawyer) v. Ontario (Information and Privacy Commissioner), 2018 ONCA 559 (Ont. C.A.) [1], the issue on appeal was whether a child client’s records with the Children’s Lawyer for Ontario are subject to the father’s freedom of information access request. In examining a child’s right to privacy in that context, the Court of Appeal for Ontario stated:

(a) whenever a child is affected by a court or government process, the primary consideration must be the child’s best interests and this principle has been enshrined in Article 3.1 of the Convention on the Rights of the Child, supra (at para. 58);

(b) the preamble to the Convention directs that special safeguards and care, including legal protection, be imported to children. Article 40.2(b)(vii) refers to a child’s privacy rights being fully respected (paras. 74-75).

[39] A review of some other cases, discussed below, which have considered the open court principle, show varying results, dependent on their particular facts.

[40] The case of K.(M.S.) v. T.(T.L.), 2003 CarswellOnt 9517 (Ont. C.A.), involved a case where one of the parents was wealthy and from a well-known family. A request was made to seal the file to protect the parties’ child (who was age three at the time of the hearing of the appeal). The lower court [2] found there was an appreciable risk of kidnapping if information regarding the child remained in the public domain. The court ordered that certain portions of the court record would be redacted and that, where documents had been redacted, then the public file would contain only the redacted documents. The court did not order the entire file to be sealed from the public. On appeal, the lower court order was set aside and the entire file was ordered sealed.

[41] In G.(C.M.) v. G.(R.), 2012 ONSC 2496 (Ont. S.C.J.), a request was made to seal the file and identify the parties by their initials. There were two children, ages 12 and 13. The parents were from a high-profile family. There was evidence that both children had suffered emotionally. The court ordered that the parties and children should be identified by their initials. A sealing order was granted but only in relation to some of the claims in the proceeding. Custody and access claims were included in the sealing order.

[42] In W.(W.) v. X.X., 2013 ONSC 929 (Ont. S.C.J.), the court granted a partial sealing order and a publication ban. That case involved issues of access and declaration of parentage with respect to a child born following a sperm donation from the applicant. The parties already had been identified in the press.

[43] M.(G.) v. M.(R.), 2015 ONSC 4026 (Ont. S.C.J.), was a case involving two children, ages four and five. It appeared that one of the children had a gender identity issue. The children’s aid society had commenced protection proceedings and there was a reported decision of the Ontario Court of Justice in relation to a temporary care and custody motion. That reported decision had been the subject of press coverage, including a lengthy article in a local newspaper. The court noted that most of the facts and evidence that could be gleaned from the current file before the court had been extensively reviewed in the 119-paragraph decision of the Ontario Court of Justice, and that not much more could be discovered except for the identity of the parties and the children. Accordingly, the court ordered that the names of the parties and children be initialized and a publication ban was imposed to prevent identification of the parties and the children.

[44] In Foulidis v. Foulidis, 2016 ONSC 6732 (Ont. S.C.J.), the issue before the court was whether an interim sealing order made on the consent of both parents should be set aside on the basis that no notice had been given to the media regarding the consent order.

[45] Mr. Foulidis opposed the removal of the sealing order. The motion was brought by Postmedia Network Inc. Mr. Foulidis had been in the public eye because of his business interests and his defamation lawsuit against Toronto’s late former mayor.

[46] In the court’s analysis regarding the open court principle, the court found that Mr. Foulidis had not established any risk of harm to the administration of justice that arises in the absence of a sealing order or a publication ban (para. 41). However, the court did find that identity theft was a realistic concern, and a publication ban was imposed on personal identifiers.

[47] In relation to the parties’ children, one child was an adult and the two youngest children were ages 16 and 17. The court declined to make a sealing order and, instead, ordered a limited publication ban designed to prevent harm that is likely to occur if there is media attention regarding certain details contained in the file.

[48] In P.(B.C.) v. P.(A.R.), 2016 ONSC 4518 (Ont. S.C.J.), a decision of Kiteley J., the court heard four parentage applications involving assisted reproductive technologies. The nature of the evidence before the court included information about: the intended parents; the surrogate and her domestic partner; other children of the intended parents; personal and private health information, including DNA reports; and evidence from the parents as to the importance of sharing information with the child only when the child is mature enough to understand the concepts.

[49] Kiteley J. found that a sealing order was necessary to prevent a serious risk to the proper administration of justice. Alternative means would not prevent the risk of disclosure. Kiteley J. also considered the privacy and security concerns of the intended parents and other children of the intended parents, in addition to the privacy and security concerns of the surrogate and her domestic partner (if any) and her or their children.

[50] In M.M. v. N.M., 2018 ONSC 6939 (Ont. S.C.J.), a motion was brought for a sealing order and a publication ban. The father was charged with sexual assault and other charges regarding children in the context of having a position of trust with children. The court granted an order initializing the file and a publication ban. The court was not satisfied as to why a sealing order was necessary over and above a publication ban and initialization and, accordingly, the sealing order was denied.

[51] G.S. and K.S. v. Metroland Media Group et al., 2020 ONSC 5227 (Ont. S.C.J.), involved a motion brought by the mother for a sealing order, publication ban on any information regarding the file and initializing the file. The children were ages seven and nine. In August 2020, a male individual was killed when the vehicle occupied by him parked in front of the Waterloo Region Courthouse burst into flames. It appeared that the male individual almost certainly was the father. This occurrence had received significant media coverage already. Various media representatives appeared on the motion. The media had been notified of the motion pursuant to the Consolidated Provincial Practice Direction. The court declined to grant a sealing order; but the court did grant a publication ban relating to identifying information concerning the children, the mother, her partner, including any minor children of the partner, maternal aunt and maternal grandparents. The publication ban did not include identifying information regarding the father. All documents in the file were ordered to be initialized.

(iii) Consolidated Provincial Practice Direction

[52] This practice direction, on the website of the Superior Court of Justice, is stated to be effective July 1, 2014, but subject to various amendments, dates of which are included in the practice direction. Part F of the practice direction deals with publication bans. This Part applies to all civil, criminal and family proceedings. It applies to all “applications or motions” for discretionary publication bans. It does not apply to publication bans mandated by statute. Paragraphs 109 and 110 of the practice direction state:

Formal Notice of Application/Motion Required

109. Unless otherwise directed by the court, 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

110. Unless otherwise directed by the court, 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.

[53] When a publication ban is sought, the requirement to serve and file a motion or application to that effect, and the requirement to provide notice to the media, both apply “unless otherwise ordered by the court.”

[54] In the present case, in relation to paragraph 109 of the practice direction, the court was not made aware of any motion being filed for a sealing order or a publication ban. Rather, these requests were made orally during the trial.

[55] There are cases where notices have been given to the media in accordance with the practice direction. Some examples are: G.S. and K.S. v. Metroland Media Group et al., supra; M.M. v. N.M., supra; and A.P. v. L.K., 2019 ONSC 4010 (Ont. S.C.J.).

[56] In Foulidis v. Foulidis, supra, as indicated previously, the motion was brought by the media to set aside an interim sealing order and publication ban obtained without notice to the media. It was noted, and accepted by the court, that the requirement to give notice to the media had come into effect only recently and that counsel involved in obtaining the interim sealing order and publication ban were unaware of same.

[57] In her reasons, Harvison Young J., as she then was, stated, in part, at para. 23:

23 … The Practice Direction, however, may be understood as a "wake up call" to family law practitioners that open court constitutional principles must be applied in the family law context. …

[58] In some cases, the requirement to provide notice to the media has been dispensed with. In P.(B.C.) v. P.(A.R.), supra, a decision of Kiteley J. discussed earlier, where a sealing order was granted in four separate cases involving declarations of parentage, the court also dispensed with the requirement to give notice to the media. Kiteley J. stated, at para. 31(h):

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:

(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.

[59] In R.(M.R.) v. M.(J.), 2017 ONSC 2655 (Ont. S.C.J.), Fryer J. dispensed with the requirement to give notice to the media and made an order initializing the case and prohibiting anyone who has gained access to the file from communicating to any other person the identity of the parties, the child or any relative of the child, or information that has the effect of identifying the parties, the child or relatives of the child. The main issue in that case was whether the respondent, who had donated his sperm to the applicant through sexual intercourse, was a parent. Fryer J. considered the recent amendments to the Children's Law Reform Act in relation to parentage, and concluded that the respondent was not a parent.

DISCUSSION

[60] While both parents were content with a publication ban, counsel for the OCL submitted that this was an appropriate case for a sealing order and a non-publication order, failing which the order should provide for initialization and non-publication.

[61] Considering the first prerequisite set out in Sherman, I find that court openness poses a serious risk to an important public interest. The important public interest is the children’s right to privacy, including privacy and the protection of children from sexual abuse.

[62] It is known that two of the children were subjected to sexual abuse, resulting in the perpetrator being convicted under the YCJA in respect of one of the children as the victim.

[63] In the present case, the children’s privacy rights are related to their dignity. The information in the court file included descriptions of all the children’s interviews with the police and child protection workers, and details as to the nature of the victimization of two of the children. This information is sufficiently sensitive so as to strike at the biographical core of each child, creating a serious risk that, without an exceptional order, the affected child will suffer an affront to their dignity (Sherman, at para. 35).

[64] Subjection to sexual abuse was one of the specific examples (Sherman, at para. 77) of sensitive personal information that would give rise to a serious risk if exposed.

[65] The children’s privacy rights are tied, both to their ages and the victimization from which protection is sought. This issue is not just privacy, but protection of privacy from the “intrusive humiliation” of sexual abuse (A.B., supra, at para. 14).

[66] The child victims in the present case, if their names or other identifying information appear in the media, can lead to exacerbation of trauma and complications for a recovery (A.B., supra, at para. 26). There is evidence in the present case as to the children’s needs for counselling.

[67] Although the evidentiary record before the court suggests that one of the children was not physically or sexually victimized, there is evidence that this child was questioned by authorities. Also, there is evidence that this child has special needs because of a sensitive medical condition and that this child’s special needs may have dissuaded the perpetuator from victimizing this child. This information is on the same level of sensitive personal information as the descriptions of how the other two children were sexually victimized.

[68] The fact that one of the children was not sexually or physically victimized does not change the analysis in relation to that child. On the facts, all three children equally, and to the same degree, face serious risk to their privacy rights if the file remains in the public domain.

[69] I consider that Canadian law provides children with greater privacy rights than similarly-situated adults in a number of contexts (R. v. Jarvis, supra, at para. 86).

[70] The foregoing discussion also supports a conclusion in relation to the second prerequisite in Sherman that an order is necessary because alternative means will not prevent the risk. The third prerequisite in Sherman requires the court to examine proportionality – whether the benefit of the exceptional order outweighs its negative effects.

[71] I find that there should be a sealing order, together with a publication ban. A person who has access to the file would learn the intimate and embarrassing details as to the nature of the sexual assaults that were perpetrated, the medical condition of one of the children and why that child was not victimized. I conclude that it would be an indignity for the children if other persons have access to this information. From the children’s perspective, access to this information, and the non-publication of this information, are mutually exclusive but equally deleterious.

[72] The children are at an age where knowledge that someone can access their file and read about the details of the sexual abuse will serve only to victimize the children again – an affront to their dignity. The evidence at trial indicates there are various documents that referred to the sexual assaults, including exhibits and the pleadings. Further, this case was started in 2017 and, therefore, there would be a physical file, the full contents of which were not before the court during the trial.

[73] The benefits to the children of a sealing and non-publication order outweigh the negative effects on the open court principle. The sealing order will prevent other persons from learning about how the children were traumatized. The negative effects of removing this information from the public domain range from non-existent to minimal. The benefits to the children in suppressing this information from the public domain are significant.

[74] It is not known who may have had access to the file since this proceeding commenced. A non-publication order, as set out below, also is required to protect the children’s anonymity.

[75] In relation to the sealing order, it will not apply to documents already included in the sealing order made by Nicholson J.

[76] In relation to providing advance notice to the media, I exercise my discretion to dispense with this requirement. In doing so, I take into account the evidence as to the nature of the file contents. The publication of these reasons will provide some information for the public domain, as will the initialized transcript of the reasons for judgment at trial, which also shall remain in the public domain as provided in the order below.

[77] As explained in Ontario (Children’s Lawyer) v. Ontario (Information and Privacy Commissioner), supra, at para. 58, whenever a child is affected by a court or government process, the primary consideration must be the child’s best interests.

[78] The analysis in the present case, as it affects the children, also must be considered in the context of the best interests of all three children. I find that the order below meets the children’s best interests.

[79] The fact that there may be publication bans in effect, for example pursuant to ss. 110 and 111 of the YCJA and s. 486.4 of the Criminal Code, do not, in my view, impact on the open court analysis discussed above. The order below is wider in scope and responds to the information and documents in this specific proceeding.

[80] Finally, the analysis resulting in the order below focuses on the children, rather than the parents, because when viewed from the children’s perspective, the analysis justifying a restriction on the open court principle is more compelling and results in a greater intrusion on the open court principle. Hence, on the facts, it becomes unnecessary to conduct an analysis from the parents’ perspective as the final result would be driven by an inquiry from the children’s perspective.

ORDER

[81] For reasons set out above, I make the following final order:

1. The requirement in paragraph 109 of the Consolidated Provincial Practice Direction, effective July 1, 2014, as amended, to serve and file a motion restricting publication of this proceeding, is dispensed with.

2. The requirement in paragraph 110 of the aforesaid Consolidated Provincial Practice Direction to provide notice to the media of any request to restrict publication of this proceeding is dispensed with.

3. Subject to paragraph 4 of this order, the contents of the court file, both paper and digital, shall be sealed, and access to all or part of the court file shall be limited to: (a) the court and authorized court employees; (b) the parties and their counsel; and (c) counsel for each child while that child is under the age of majority and, if a child has attained the age of majority, then that child’s access to the file requires an order of this court permitting same.

4. The exceptions to the sealing order in paragraph 3 above are as follows: (a) paragraph 3 does not apply to the documents that are the subject of the sealing order dated August 3, 2021 made by Nicholson J., and any access to those documents shall be in accordance with the order of Nicholson J. dated August 3, 2021; and (b) the sealing order in paragraph 3 shall not apply to the following documents, which shall remain accessible to the public: (i) this final order and the endorsement; and (ii) when released, the initialized transcript of the reasons for judgment in this proceeding dated September 15, 2021.

5. No person shall publish or make public information that has the effect of identifying the parties, any of the children or any other person referred to in any document that is in the court file in this proceeding.

6. Any person who has gained, or gains in the future, access to the court file is prohibited from communicating to any other person the identity of the parties or children, or any information that has the effect or could have the effect of identifying the parties or the children.

7. No transcript of any step in this proceeding, including the trial, shall be prepared or released except on order of this court.

8. The names of the parties in this signed and issued order shall be initialized.

9. The clerk of this court immediately shall ensure that this court file is sealed in accordance with this order, and the clerk shall implement all necessary protocols to ensure that this court file remains sealed in accordance with this order.

“Justice Victor Mitrow” Justice Victor Mitrow

Released: March 9, 2022

COURT FILE NO.: FC1940/11-1 DATE: March 9, 2022 ONTARIO SUPERIOR COURT OF JUSTICE FAMILY COURT BETWEEN: S.E.L. Applicant

• and - O.V.P. Respondent REASONS FOR JUDGMENT MITROW J.

Released: March 9, 2022

[1] Leave to appeal to the Supreme Court of Canada refused: 2019 CarswellOnt 4698 (S.C.C.).

[2] K.(M.S.) v. T.(L.T.), 2002 CarswellOnt 3091 (Ont. S.C.J.)