When children are involved in a divorce or separation, it’s common for published court decisions to protect the identity of the children by referring to the parents by their initials. However in some cases such protections may not be enough to ensure the rights of the children are protected. Such a situation was recently brought before Ontario Superior Court of Justice where an application was brought by the mother for a sealing order and a publication ban on the hearing.

Leading up to the case

The facts behind the request are not pleasant. The mother and father had one child together. They were no longer married and there was a final order in place granting the father access to the child every other weekend as well as every Tuesday and Thursday evening for two hours. The father brought a motion to change that order on November 24, 2015 and again on January 18, 2016.

However, before that matter could be determined, the father was charged under the Criminal Code with the following offenses.  

a.      Sexual Assault, contrary to section 271 (two counts);

b.      Make Explicit Sexual Material Available, contrary to section 171(1)(a); and

c.      Sexual Interference contrary to section 151 (two counts).

The father did not have any access to the child subsequent to the charges being laid. However, he did as the court to allow him to maintain some supervised contact with the child, specifically on Thursday evenings and Sundays from 9:00am to 7:00pm.

The mother, who did not have the details surrounding the father’s criminal charges, said she needed to know more about the allegations against him before taking a position on the father’s request.

Seeking the bail transcript

The mother’s position was that in order to take a position on the father’s request, she would need to see the transcript of the father’s bail hearing. He counsel was given the transcript, though it came with a publication ban, which the mother’s counsel was thought would prevent her from providing a copy to the client as well as the court.

In order to satisfy the publication ban and still be able to discuss the transcript in court, the mother sought for the access hearing to be subject to a publication ban and sealing order.

Publication bans in court

The idea of an open court is an important one. A 1994 decision resulted in what is known as the Degenais test, which was reformulated in a 2001 decision from the Supreme Court of Canada. The test states,  

“a publication ban should only be ordered when such an order is necessary to prevent serious risk to the proper administration of justice because reasonable alternative measures will not prevent the risk; and, the salutary effects of the publication ban outweigh deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice.”

However, the Children’s Law Reform Act acknowledges that in some situations it is appropriate to restrict the openness of the court process. The act staes,

(2) In determining whether to make an order under subsection (1), the court shall consider,

(a) the nature and sensitivity of the information contained in the documents relating to the application under this Part that appear in the court file; and

(b) whether not making the order could cause physical, mental or emotional harm to any person referred to in those documents.

Applying the law to the case at hand

The court stated that the crimes the father was charged with were serious and of a sexual nature and involving children. The children against whom the crimes were alleged to have been committed lived in the same neighbourhood as the parties’ child. The court understood that should the child be identified in court records, it may result in bullying and other difficulties. However, the court thought that a publication ban would be enough to protect the identify of those involved and that a sealing order would not be proportionate to the protection needed in this case. The court wrote,

“the salutary effects of a publication ban and initialization outweigh the deleterious effects on the rights and interests of the parties and the public. The administration of justice must be alive to children’s best interests and seek to minimize harm to children where it can be prevented. Preventing harm in this case requires the lesser incursions on the open court principle, not a sealing order.”

With more than 25 years of experience in family law, there are very few problems in which Jason P. Howie has not previously been involved. Our firm takes a calm, rational approach to separation and divorce, and we help our clients do the same. We understand when some matters may require urgency and when others may need a steady, methodical approach. To learn how we can help you in your family law matter, please call us at 519.973.1500 or reach us online.