Anonymity in Family Law Litigation: Sealing Orders and Publication Bans M.M. v. N.M., 2018 Carswell Ont 22963
The parties in this matter have one change. A final order was in place that provided the father access to the child on Tuesday and Thursday evenings, as well as every other weekend.
Subsequently, the father was charged with a several of criminal offenses relating to sexual assault, sexual interference and pornography. It does not appear that these criminal charges are related to his child.
However, the father did not have access to the child since the charges were laid. The father brought a motion to change the final order from 2015 with regards to custody and access.
The mother brought a motion for a publication ban and sealing order, as well as an order that the mother and family court be permitted to read the bail hearing transcript for the father’s criminal matter, which was subject to a publication ban.
The father was on bail and he sought supervised access in his Motion to Change. Justice Madsen first required that the media be provided with notice of the relief sought, however, no media attended the motion.
Turning to the issue of whether a sealing order ought to be granted, Justice Madsen carefully reviewed the Dagenais/Mentuck test. Justice Madsen notes that in Vancouver Sun, Re, 2004 CarswellBC 1376, REJB 2004-66287 (S.C.C.), the Court was required to consider not only whether reasonable alternatives are available, but also to restrict the order as far as possible without sacrificing the prevention of the risk.
To this end, Justice Madsen said the following (at para 24 – 27): “The question becomes which protections are required in the family court context, as the law requires that the openness be impaired only to the degree required to prevent the identified risks. In my view, a publication ban and initialization are required to prevent the risks to the child set out above. Initialization will provide anonymity to the child and the parties and a publication ban will prevent the dissemination of information related to this case. These protections are also required to ensure that the limitations imposed by the criminal court to protect complainants and witnesses are not inadvertently circumvented by the publication of material in relation to the proceedings in this court. At the same time, the open court principle in this case requires that the public have access to the initialized file. The allegations are serious and there is a significant public interest in the openness of the file. Neither the mother nor the father could justify why a sealing order would be required over and above a publication ban and initialization.”
Based on this assessment of the risks to the child, and weighing them against the open court principle, the judge declined to grant a sealing order. The public can access the file, but not disseminate information gleaned from the file.
The court further ordered that the mother was granted permission to review the redacted transcript of the father’s bail hearing and that the family law proceedings be initialized.
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