Law Times

Law Times • June 18, 2012 BY MICHAEL McKIERNAN Law Times S Lawyers debate privacy in family law files FOCUS privacy in family court cases after the Court of Appeal confirmed the high threshold for non-pub- lication orders in divorce matters. In M.E.H. v. Williams, the ome Ontario family law- yers have called on the provincial government to legislate an element of pleadings in litigation promotes honesty and reasonableness." Despite noting she saw no particularly vehement. Andrew Feldstein, principal at information in the case to justify hiding the names, Griffin allowed the earlier consent order to stand because neither party wanted the status changed. The husband was Feldstein Family Law Group in Markham, Ont., says the Vikileaks Twitter account, which revealed sordid details from allegations made in the divorce file of federal Public Safety Minister Vic Toews, appeal court set aside most of the terms of a wide-ranging publication ban and sealing order that prevented the publi- cation of the name, address, and employer of Mary Elizabeth Harriman, the wife of convicted killer Russell Williams. Writing for the unanimous three-judge panel, appeal court Justice David Doherty said the court can't make such orders unless they are "necessary to pre- vent a serious risk to the proper administration of justice. open court system, so you can argue for sealing, but it' ficult claim to be made and having records sealed is becoming harder and harder, "The principle is we have an s a very dif- " associate with Bales Beall LLP. Jamal would like to see the " says Fareen Jamal, an onus reversed so that family court files would mask the parties' iden- tities by default. Still, she admits, "That would have to be legislated. But Richard Dearden, a partner " with Gowling Lafleur Henderson LLP who successfully argued the M.E.H. case on behalf of a media coalition, says such a law would run into constitutional problems. "Family law cases are no differ- ent than civil proceedings where someone wants public access," he says. "That' be circumstances where you can meet the test and family law cases maybe have more potential s not to say there won't meet it than ordinary commercial litigation, but you don't start off with reversing years of 2(b) case law that' to ily lawyer with David Barristers Professional Corp., says her clients are often shocked to find that any- one can walk in off the street and view their divorce file. "Family law is a very qualita- tive kind of law, so it's the details Kathryn Hendrikx, a fam- s been built up." in the facts that are what turns the case. Financial statements, foren- sic accounting, and the minutiae of people' we paint a more fulsome picture. Clients don't understand until they come into the process." She says some couples have s lives are part of how found ways around the openness by entering into confidentiality agreements and notes some judg- es will grant anonymity orders on consent. The M.E.H. case throws that into doubt, she adds. In the judgment, Doherty took aim at the practice and urged judges to resist the tempta- tion to ask "where is the harm in allowing the respondent to pro- ceed with some degree of ano- nymity" in cases where "decency ORDER # 804568-65203 $119 Hardcover approx. 580 pages May 2012 978-0-88804-568-3 Shipping and handling are extra. Price subject to change without notice and subject to applicable taxes. AVAILABLE RISK-FREE FOR 30 DAYS Order online at www.carswell.com Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 CANADA LAW BOOK® www.lawtimesnews.com to shut down Reach one of the Getting sealing orders is becoming more difficult, says Fareen Jamal. suggests some kind of protection for the respondent." "Rather, the court must ask: has the respondent shown that without the protective orders she seeks there is a serious risk to the proper administration of justice?" he added. The issue arose in a recent British Columbia case, A.B. v. C.D., involving a husband who' a partner in a national law firm. The parties entered into a consent order early in the proceedings to identify themselves by their ini- tials in judgments. The husband' s reduce his spousal support pay- ments came before Supreme Court Justice Susan Griffin. She echoed the Ontario Court of Appeal in her Feb. 23 judgment when she wrote: "The interest in open court proceedings is a public interest, not something that pri- vate parties can negotiate away. Furthermore, the fact that parties have to put their names to their s application to With more than 250,000 page views a month, canadianlawlist.com captures your market The all-new canadianlawlist.com features: — A fresh new look, designed for improved user experience — Effective new ways to reach the legal market — Gold and silver advertising packages For more information contact: Colleen Austin at 416-649-9327 or toll free at 1-800-387-5351 colleen.austin@thomsonreuters.com legal and business markets in largest Canada! PAGE 13 public realm, it's hard to take it s no judg- LT s out there in the shows the potential for misuse of public access to family law files. "Once it' back, especially when things settle before a trial and there' ment where a decision is made on the facts," says Feldstein. CLL Online ad - 1/4 pg LT.indd 1 ONTARIO FAMILY LAW EXAMINED NEW PUBLICATION PROPERTY RIGHTS AND OBLIGATIONS UNDER ONTARIO FAMILY LAW ROBERT M. HALPERN, LL.B. Strengthen your knowledge of Family Law's core areas with Property Rights and Obligations under Ontario Family Law. "NEED-TO-KNOW" FAMILY LAW INFORMATION This title offers comprehensive analysis of a wide variety of core topics and issues pertaining to property rights and obligations in Ontario family law. • Chapters I through IV focus on the rights and obligations of married spouses under Part I of the Family Law Act • Chapters VI and VII discuss coverage of income tax and bankruptcy matters • Chapter VIII covers property protection techniques • Chapter V offers exclusive coverage of the substantive rights and obligations of all cohabitants 2/15/12 1:38 PM Online Print and in

• Cover