Law Times

Page 8 June 17, 2013 Law Times • Focus On Family Law Rulings put chill on sealing, publication bans BY JuDY VAN RHIJN W For Law Times ith the Ontario Court of Appeal championing the opencourt policy in civil cases, family law litigants are reluctant to even try for orders that will protect their privacy in sensitive family disputes. While many lawyers privately believe that using initials instead of names would serve justice and privacy rights, there's no lobbying group taking up the challenge against a power'Family law cases are ful media bar. In the meantime, client privacy is governed by the losing ground to the public's right to know. constitutional open-court Judith Huddart of Dranoff & Huddart in principle just like criminal Toronto has serious concerns about the privacy ramifications of public openness in family law law or commercial law,' matters. "Family law is hugely emotional and says Richard Dearden. private all the time, but everyone has access to the files. People are required to file really confidential financial information: what they earn, refers to any case concerning children as a "no-fly zone" the property they own, their compensation and benefits. and also references examples in tort and negligence If people have a name and if records can be accessed elec- where a party says, "If I don't get to do this anonymously, tronically, anybody who's nosy can find out. People don't I won't do it at all." realize how much in the public realm their family law Still, he believes this scenario would rarely extend into litigation is." the family law arena. "The parties are still litigants and She also cites cases involving children. "The issues are their cases should be accessible where there is no demhugely sensitive with respect to children. We would hope onstration of harm. People are not going to stop going to that we could get sealing orders where appropriate but court in family law because of the openness." you can't guarantee it. The law is in a state of flux and difHe also sees an exception for medical evidence. In fers from province to province." the case of M.E.H. v. Williams that Dearden acted in on Rick Dearden, a media lawyer at Gowling Lafleur behalf of media interveners, the privacy of the mediHenderson LLP, doesn't think family law should get any cal evidence of the estranged wife of serial killer Russell special treatment. "Family law cases are governed by the Williams wasn't an issue even though everything else constitutional open-court principle just like criminal law was. "The psychological evidence was clear that she was or commercial law. That doesn't mean that there won't be devastated and who wouldn't be? But there was another situations in family law where the file won't be sealed." He party to the potential divorce and he was serving a life sentence for murders. The people he victimized were suing for damages. This divorce was dealing with the division of assets in circumstances where there was a fraudulent conveyance to the wife to judgment-proof himself. That provided the need to know. It will be important to know how the court deals with his military pension, which is substantial." The success of the media's argument in M.E.H. has made it a compelling case, particularly regarding the standard of evidence necessary to support a publication ban. "You have to prove necessity on convincing evidence that the salutary effect outweighs the deleterious effect of people not knowing," says Dearden. Huddart believes the decision and a series of challenges related to the Charter of Rights and Freedoms have caused a reluctance to even try for anonymity or sealing orders, publication bans, and other privacy protections in divorce cases. "Even before this case, publication orders and the like were not easy to get, but it was possible to get one without standing on your head and citing a million cases. It was more discretionary. There is now quite a chill in the air in terms of accommodating litigants, whether it be through sealing or using initials to discourage people from connecting the dots." Huddart suspects people aren't even asking for privacy orders now. "Less people are asking because if you're not going to get it, you don't ask. They don't want to put even that much information out there in case the media say, 'Oh, that must be an interesting case.'" Many lawyers believe initializing people's names should be the default position in family law unless media interests prove it's inappropriate. In Quebec and British Columbia, initializing the parties' names is one way of achieving openness and protecting privacy. "Clients would be much better served by using initials," says Huddart. "I've never understood the rationale for not doing that unless people are looking for gossip. There will always be people who can't settle — high conflict, wellknown people whose names are out there — but you do not need to know what your neighbour is earning to understand the legal issues or if you know what they're earning, you don't need to know it's your next-door neighbour." But Dearden responds to such suggestions: "Let me reverse the question. Why not have names? You are a participant in the court system and ours is wide open. People are entitled to know who is bringing the action." He notes that if people can't identify the parties, they can still be in the courtroom and report on everything that arises except any information that could reveal the names of those involved. "That is a real slippery slope. It is a very difficult exercise to determine what information could reveal the name of the party." There's also the issue of advanced notification of any application for publication restrictions. "We in the media interpret the pronouncement of the See Notification, page 9 Childview_LT_Feb11_13.indd 1 www.lawtimesnews.com 13-02-05 4:11 PM

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