Court File and Parties

Court File No.: FS-22-28064 Date: 20220405 Ontario Superior Court of Justice

Between: A.B. Applicant – and – C.D. Respondent

Counsel: Aaron Franks and Alyssa Weinerman, for the Applicant No one appearing for the Respondent

Heard: March 15, 2022

Before: Davies J.

Reasons for Decision

A. Overview

[1] A.B. and C.D. separated in August 2017 after more than 16 years of marriage. They have three children, who are all under the age of 10.

[2] On February 9, 2022, A.B. issued a notice of application in which she is seeking a divorce from C.D. as well as spousal support, child support, sole decision-making responsibility for the three children, exclusive possession of the matrimonial home and equalization of net family property.

[3] A.B. sent her application materials to C.D. by email but has not served C.D. in accordance with the Family Law Rules. A.B. has not seen C.D. since September 2021 and she does not know where he is living. A.B. brought this motion for an order permitting her to serve her application materials by email rather than by special service as required by the Rules.

[4] A.B. is also seeking an order initializing the names of the parties and their children in this proceeding to protect her and the children from physical and psychological harm. Allegations have been made that C.D. was involved in a multi-million-dollar fraud. A.B. has received threatening phone calls and text messages from people demanding the return of their money and demanding to know C.D.’s whereabouts. A.B. is fearful for her safety and the safety of the children if personal information about them is publicly available through the family court file.

[5] Finally, A.B. seeks $8,000 in costs of the motion.

[6] For the reasons that following, the motion is granted, and C.D. is ordered to pay $4000 in costs inclusive of HST and disbursements.

B. Substitute Service

[7] A.B. issued her notice of application on February 9, 2022.

[8] Under Rule 6(4.1) of the Family Law Rules, A.B. is required to serve C.D. with application by special service. This requires A.B. to deliver a copy to C.D. personally, to his lawyer of record or to his current address.

[9] A.B. has not served her application on C.D. in accordance with the rules because she does not know where he is currently living. She is seeking an order for substitute service by email.

[10] On August 17, 2021, someone came to A.B. and C.D.’s home and threatened C.D. with a baseball bat. In the days and weeks following that incident, A.B. learned that C.D. was allegedly involved in a multi-million-dollar fraud. C.D. is now facing a civil lawsuit by several investors in his scheme.

[11] C.D. left the family home in late August 2021 and has not returned. A.B. has not seen C.D. since September 2021. They now communicate sporadically by text and email only.

[12] Since August, A.B. has been contacted and visited by several people demanding to know C.D.’s whereabouts. In November 2021, the Toronto Police also came to the family home looking for him.

[13] I accept that A.B. does not know where C.D. is or is currently living.

[14] Counsel for A.B. sent C.D. a copy of her Application, Financial Statement and Affidavit by email and by text. C.D. has not responded to counsel’s communications. Counsel for A.B. also sent a copy of her materials to C.D.’s counsel on the ongoing civil lawsuit about the alleged fraud. C.D.’s lawyer responded and said he is not counsel for C.D. on the family proceeding.

[15] Under Rule 6(15) of the Family Law Rules, I can order that a document be served by an alternate method than provided for in the Rules if efforts have been made to locate the person to be served and if the alternate method of service could reasonably be expected to bring the documents to the person’s attention.

[16] C.D. appears to be hiding from his investors and from the police. His last known address is the matrimonial home, but he has not been there since late August 2021. A.B. has not seen him since September 2021. I am satisfied that A.B. is not able to find C.D. for the purpose of serving him personally.

[17] I am also satisfied that it is reasonable to expect that service by email will bring documents related to these proceedings to C.D.’s attention. C.D. sent A.B. an email in his name from a @rogers.com email address on February 8, 2022 seeking information from A.B. Based on C.D.’s recent communications, I am satisfied that the email used by him is his current email address.

[18] A.B. is, therefore, granted leave to serve her notice of application and any other document related to this proceeding on C.D. by email at his @rogers.com email address.

[19] A.B. is required to re-serve her notice application, financial statement and affidavit together with a copy of this ruling on C.D. by email. Service of those documents will be effective on the date shown on the email message unless otherwise provided for in Rules 6(11) and 6(11.3) of the Family Law Rules.

[20] Out of an abundance of caution, a copy of any materials served on C.D. by email shall also be delivered to his counsel on the outstanding civil proceedings, if known to A.B. Delivery to C.D.’s civil counsel will not constitute service. I am making this order simply to create an alternate means by which documents related to the family court proceedings will likely come to C.D.’s attention.

C. Request to Initialize Names of the Parties and Their Children

[21] The open court principle is a constitutionally enshrined right in Canada that protects the integrity and fairness of our legal system. There is a strong presumption that court files and court proceedings will be open to the public. There will, however, be circumstances in which competing interests justify a restriction on the open court principle: Sherman Estates v. Donovan, 2021 SCC 25 at paras. 1 – 3.

[22] A.B. seeks an order initializing the names of parties to a proceeding and their children to protect their safety. If granted, an order initializing the names of the parties and their children would infringe the open court principle. The burden is, therefore, on A.B. to establish that

(a) the open court principle poses a serious risk to an important public interest;

(b) the order she seeks is necessary because no other measure will not prevent the risk; and,

(c) as a matter of proportionality, the benefits of an order prohibiting the publication of the names of the parties and their children outweigh its negative impact on free expression and the efficacy of the administration of justice: Sherman Estates v. Donovan, at para. 38.

[23] In addition to my common law jurisdiction to restrict the publication of the names and other information that would identify the children in this case, the Children’s Law Reform Act, R.S.O. 1990 c. C.12, s. 70(1) also give me authority to make an order prohibiting the publication or dissemination of information that could identify any person referred to in a family court file. When considering whether to make such an order, I must consider the sensitivity of the information contained in the file and “whether not making an order could cause physical, mental or emotional harm to any person” referred to in the court file: CLRA, s. 70(2).

[24] I am satisfied that allowing unrestricted public access to the court file could cause physical or emotional harm to A.B. and her children.

[25] On August 17, 2021, someone came to A.B.’s home with a baseball bat and threatened her husband and demanded money from him. Over the following days and weeks, A.B. discovered that C.D. was allegedly involved in a multi-million-dollar fraud. C.D. is being sued by several investors in his scheme. In November, the Toronto Police came to A.B.’s home looking for C.D.

[26] C.D. left the family home in late August 2021. A.B. has not seen him since shortly after he left. Since August 2021, several people have come to the matrimonial home and to A.B.’s mother’s house looking for C.D. The person who came to the house with the baseball bat on August 17, 2021 came back several times in the fall of 2021.

[27] A.B. has also received text messages and phone calls from unknown numbers threatening her and the children. For example, someone came to her house in November 2021 and threatened A.B. She reported the incident to the police. While she was speaking to the police, she received an anonymous phone from someone who said he would cut her throat if she did not tell him C.D.’s whereabouts.

[28] A.B. received one text message that read, “You will never be safe again.” She received another text message that read as follows:

Your kids. Your mum. Your siblings. We’re coming for everyone. If that’s the life you want to lead we have zero empathy for you. Your shitty dickhead of a husband made some selfish moves that won’t play at well for anyone around him.

[29] Another text message read, “[C.D.] just dragged you into a whole new world you want no part of. Life as you knew it will be no more.” Another text message read, “I’m giving [C.D.] until end of day to answer my phone call. If he doesn’t I’m coming for you And your entire family. Bunch of greasy fucking Jews.”

[30] A.B. has hired private security officers to monitor her home and accompany her when she goes out. At times, she has had security officers outside her house around the clock.

[31] A.B. disclosed in her affidavit that two of the children suffer from severe anxiety. Details of their mental health will be addressed during the family court proceedings. A.B. is concerned that the people who are looking for C.D. will use confidential information from the family court proceedings to continue to threaten and harass her and the children.

[32] I find that allowing the public full access to the family court file could create a serious risk of physical or psychological harm to the children and A.B. Information could be used by those seeking redress from C.D. to threaten or harm A.B. or the children. Protecting the children and A.B. from physical and psychological harm is an important public interest that must be balanced against the open court principle.

[33] In her notice of motion, A.B. requested an order “sealing, initializing or otherwise limiting access to the public of details of this proceeding.” In oral argument, counsel for A.B. clarified that she was only seeking an order initializing the names of the parties and their children.

[34] I am satisfied that an order initializing the names in this matter is necessary. No other measure would adequately protect the children and A.B. from the risk of serious harm. There are people looking for C.D. Those people have already threatened and harassed A.B. in pursuit of C.D. If the public has unfettered access to the court file in this matter, information about this family could be used by those seeking redress from C.D. to further threaten or harm A.B. and the children.

[35] I am satisfied that A.B. has brought her application for a divorce and other corollary relief, at least in part, to protect the children’s best interests during the breakdown of her marriage. The Court file should never be permitted to become a means for others to harm the children, who are innocent of any wrongdoing in this matter: C.M.G. v. R.G., 2012 ONSC 2496. A.B.’s children played no role in C.D.’s allegedly fraudulent scheme. They played no role in C.D.’s decision to leave his family and seemingly go into hiding. They played no role in A.B.’s decision to file an application for divorce and other relief in the family court. They have no ability to withdraw from the court process. They have no ability to protect their own privacy and anonymity in the family court dispute. Because of their lack of agency, it is the Court’s obligation to ensure that the physical and emotional safety of the children are not compromised for the sake of protecting the open court principle.

[36] I am also satisfied an order initializing the names of the people involved in this case, including the parties and the children, strikes an appropriate balance between the open court principle and the need to avoid the risk of harm to A.B. and her children. The content of the file and the court proceedings will be accessible to the public. It will only be information that will identify the children that will not be accessible.

[37] There has already been media attention in this case. The allegations against C.D. are already a matter of public record and are of public interest. I have considered the fact that the media will be able to report freely on the civil proceedings against C.D. Should criminal charges be laid, the media will be permitted to report on those proceedings as well. All that is being restricted by this order is the publication of information from the family file that would tend to identify the children.

[38] On balance, I find that an order initializing the names of the parties and their children is necessary to protect their physical and psychological safety and is proportionate having regard to the importance of the open court principles.

D. Costs

[39] A.B. seeks $8,000 in costs for this motion.

[40] While costs are within the discretion of the Court, there is a presumption that a success party is entitled to the costs of a motion: Family Law Rules, R. 24(1). There is also a presumption that costs will be awarded against a party who fails to appear on a motion “unless the court orders otherwise in the interests of justice”: Family Law Rules, R. 24(7).

[41] In my view, it is appropriate to award costs to A.B. for the portion of this motion dealing with substitute service. On February 23, 2021, A.B.’s lawyer asked C.D. to acknowledge service of her notice of application, financial statement and affidavit. Had C.D. responded, A.B.’s motion for substitute service could have been avoided. She is entitled to costs of that portion of the motion.

[42] In my view, the request for a discretionary restriction on the open court principle is a different matter. Regardless of C.D.’s position on A.B.’s request to initialize the names of the parties and their children, she would have had to bring a motion. The party requesting a publication ban must satisfy the Court that it is necessary and proportionate. A.B. would have had to adduce the same evidence to justify her request regardless of C.D.’s participation or position. C.D.’s failure to participate did not force A.B. to bring an unnecessary motion or incur unnecessary legal costs.

[43] C.D. is ordered to pay A.B. $4,000 in costs inclusive of HST and disbursements.

E. Conclusion and Order

[44] A.B.’s motion is granted.

[45] The names of the parties and their children shall be initialized in all materials filed in this proceeding.

[46] No person shall publish, disseminate or make public any information in any document filed in relation to this application that could identify the parties or their children.

[47] Exhibit B to the affidavit of A.B. sworn March 2, 2022 is to expunged from the court file.

[48] A.B. is granted leave to serve her notice of application, affidavit sworn February 8, 2022 and financial statement dated February 8, 2022 on C.D. by email using his @rogers.com email address.

[49] All future materials in this proceeding shall be served on C.D. by email using his @rogers.com email address.

[50] A.B. is to deliver a copy of any material served on C.D. to his counsel in the ongoing civil lawsuit, if the identity of his counsel is known to A.B.

[51] C.D. is to pay A.B. $4,000 in costs inclusive of HST and disbursements.

Davies, J. Released: April 5, 2022