On Wednesday, the Daily Mail reported that Oasis singer Liam Gallagher and All Saints' Nicole Appleton appeared at a private hearing in London's Central Family Court. The former couple is currently engaged in a viciously bitter battle over the financial terms of their divorce.
What is interesting about this dispute is that the English court has essentially placed a publication ban on the litigation by limiting what can be reported about the case. A further ruling is set to be made a later date to determine what details, if any, may be revealed.
Celebrities and high profile individuals such as Gallagher and Appleton constantly have their every minutia of their daily lives dissected by the media for public consumption. However, marriage breakdown and other family law related matters are immensely personal and private matters.
The Ontario court system is built on the principles of openness and accessibility. As such, most family court documents are publicly accessible barring a rule or order restricting access. This means that for high profile or celebrity divorce proceedings in Ontario, their private financial and other information may be accessible by intrepid reporters digging through court records.
The Ontario Family Law Rules' requirement for full and complete disclosure of the parties' financial information, income, and property in what is inherently a private matter can be troubling for privacy-minded people. Most would certainly consider such information extremely confidential and want to avoid it being accessible to the public.
If Gallagher and Appleton's dispute was being heard in Ontario, what potential options are available for them to keep their disclosure confidential?
Alternative Dispute Resolution
The first and most practical option, if the circumstances permit, would be for the musicians to enter a private dispute resolution process. Opting for private mediation, arbitration, or mediation/arbitration, or even collaborative family law gives parties more control over the process and keeps the matter out of court. Disclosure in this context can be kept private between the parties involved under a confidentiality agreement. Since the process occurs outside of court, nothing disclosed becomes part of any court or public record.
However, these processes require voluntary participation by both parties. Some, like mediation and collaborative family law, require the parties to be able to communicate and negotiate to some extent. Since Gallagher and Appleton appear to be in a high-conflict situation, these options may be inappropriate or ineffective. They, like many others, may have to rely on legislation, common law, and the court system to protect their privacy.
Deemed Undertaking Rule
In the court process, parties and their counsel have an obligation under Rule 19(24) to keep any evidence they receive under the disclosure rules confidential and may only use it for the purposes of the case for which it was obtained, subject to very few exceptions. This is known as the "deemed undertaking" rule. While this rule might protect Gallagher and Appleton from using disclosed information against other at a later date in a different matter, it does not necessarily shield from the curious peeping public.
Another option available to the singers is to seek a sealing order that would keep all or part of the disclosed financial information under wraps. Under section 137(2) of the Courts of Justice Act, Ontario courts have the jurisdiction to order the sealing any document filed in a civil proceeding such that it remains confidential and does not form part of the public record. The Supreme Court in Sierra Club of Canada v. Canada (Minister of Finance)laid out a two-part test to determine whether a sealing order should be granted. Generally, to meet that test, the party or parties must demonstrate that a sealing order is necessary to prevent a serious risk to the administration of justice because no reasonable alternative measures will prevent the risk. Consideration for potential harm to commercial interests is included under this test.
However, this test places a high standard for individuals to meet and is highly dependent upon the unique circumstances of each case. Given what little we know about Gallagher and Appleton's dispute, the chances of them satisfying an Ontario court that a sealing order would be necessary in their case is entirely up to speculation.