Stephanie Garbe

The appellant, a high-profile public figure, appealed a motion judge's dismissal of his request for a sealing order and publication ban in a family law proceeding.

The Divisional Court allowed the appeal, finding the motion judge erred in law by failing to consider alternative protective measures such as anonymization and partial sealing.

The court also found a palpable and overriding error in the motion judge's conclusion that there was no evidence of harm to the child, noting the child's need for security guards and signs of distress.

A partial sealing order and publication ban were granted to protect the child's privacy.

The moving party brought a motion for leave to appeal the decision of the lower court judge.

The Divisional Court granted the motion for leave to appeal and reserved costs to the appeal.

The Court of Appeal for Ontario granted a motion to quash an appeal in a family law matter concerning a motion for a sealing order and publication ban to protect a child’s privacy.

The court held that the order under appeal was interlocutory, not final, and thus any appeal lay to the Divisional Court with leave, not to the Court of Appeal.

The decision reviews the distinction between interlocutory and final orders, emphasizing that privacy and sealing orders are generally collateral to the main issues in family law proceedings and do not determine substantive rights.

The court also declined to reconstitute itself as the Divisional Court.

The applicant father brought a motion seeking the return of the parties' seven-year-old child to Los Angeles, California, under the Hague Convention, or, alternatively, interim parenting orders if the child remained in Ontario.

The court applied the "focal point of the child's life" test to determine habitual residence, finding that the child's habitual residence had shifted to Ontario due to the respondent mother's unilateral actions and disappearance, and the child's integration into Ontario life.

Consequently, the Hague Convention did not apply, and Ontario had jurisdiction.

The court also found that even if the Hague Convention applied, exceptions for grave risk of harm and acquiescence would prevent the child's return.

Interim parenting orders were granted, giving the applicant primary residence and major decision-making authority, with other issues adjourned to a case conference.

Costs were awarded to the applicant.