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Open Court - Family. Kirby v. Woods
In Kirby v. Woods (Ont CA, 2025) the Ontario Court of Appeal considered open court issues in a child family law context:(1) Constitutional Principles and Applicable Legislation
[6] Any request to restrict access to court proceedings engages foundational principles of court openness and freedom of expression under s. 2(b) of the Charter. The open court principle is considered a “cornerstone of the common law” and a “hallmark of a democratic society”: Vancouver Sun (Re), 2004 SCC 43, [2004] 2 S.C.R. 332, at paras. 23-24. The Supreme Court of Canada held in Vancouver Sun that the open court principle is “inextricably linked” to freedom of expression: at para. 26. As Cory J. noted in Edmonton Journal v. Alberta (Attorney General), 1989 CanLII 20 (SCC), [1989] 2 S.C.R. 1326, “it is difficult to imagine a guaranteed right more important to a democratic society than freedom of expression”: at p. 1336.
[7] However, court openness is not absolute. Limits may be required to safeguard other core values and principles. The protection of children is one such core value, grounded in the United Nations Convention on the Rights of the Child, Can. T.S. 1992 No. 3 (the “CRC”) to which Canada is a signatory, and in legislation.
[8] Article 3.1 of the CRC, provides:In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. [9] Referring to the CRC, Benotto J.A. unequivocally stated in Ontario (Children’s Lawyer) v. Ontario (Information and Privacy Commissioner), 2018 ONCA 559, 141 O.R. (3d) 481, at para. 64, leave to appeal refused, [2018] S.C.C.A. No. 360, that “[c]hildren are among the most vulnerable members of society. Courts, administrative authorities, and legislative bodies have a duty to recognize and protect their interests.” She emphasized that “[w]henever a child is affected by a court or government process, the primary consideration must be the child’s best interests”: at para. 58.
[10] Ontario legislation recognizes that limits on court openness may be appropriate in some cases, and, in furtherance of the goal of protecting children affected by litigation, specifically requires courts to consider such limits in parenting cases:a. Section 137(2) of the Courts of Justice Act, R.S.O. 1990, c. C. 43 (the “CJA”) permits any filed document to be “treated as confidential, sealed and not form part of the public record.” No factors are set out to structure the court’s discretion.
b. Section 70(1) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (the “CLRA”) provides that in a parenting case, the court shall consider, “whether it is appropriate to order … that access to all or part of the court file be limited”. Section 70(2) further provides that in determining whether to make such an order, “the court shall consider … the nature and sensitivity of the information contained in the documents relating to the application … and whether not making the order could cause physical, mental or emotional harm to any person referred to in those documents”.
c. Rule 1.3 of the Family Law Rules, O. Reg. 114/19 establishes a notice requirement in circumstances where a non-party wishes to gain access to a family law file where there are children involved, such that if the parties wish to take steps to seek a confidentiality order, they have an opportunity to do so. [11] I note that the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), under which parenting orders for children of divorcing couples are made, does not contain a parallel provision. At the same time, s. 70 of the CLRA informs the exercise of the discretion under s. 137(2) of the CJA to make confidentiality orders, and in this way equally requires the consideration of confidentiality orders in those parenting cases.
[12] In this case, there are additional relevant legislative provisions and policy instruments related to the child’s refugee determination and her privacy interests:a. Section 166(c) of the IRPA provides that refugee determination proceedings before the Refugee Protection Division and the Refugee Appeal Division, whether involving adults or children, must be held in the absence of the public.[2]
b. The IRB’s Chairperson’s Guideline # 3: Proceedings Involving Minors at the Immigration and Refugee Board ("Guideline 3”) contemplates additional safeguards for the protection of sensitive information related to refugee children, including a confidentiality order: at para. 6.8.2. Guideline 3 also confirms that the IRB must give primary consideration to the best interests of the child “in every interaction”: at para. 4.1.1. (2) Applying Sherman Estate to Parenting Cases
[13] The Supreme Court of Canada’s decision in Sherman Estate v. Donovan, 2021 SCC 25, [2021] 2 S.C.R. 75, provides guidance on the test for imposing discretionary limits on court openness.
[14] In Sherman Estate, the court clearly acknowledges that the test applies, “subject only to valid legislative enactments”: at para. 38. In this way, the test does not supersede s. 70 of the CLRA, but rather informs the appropriate exercise of discretion thereunder.
[15] Read together, in my view, s. 70 of the CLRA and the test set out in Sherman Estate require courts to protect children’s sensitive information in a way that minimally intrudes on court openness.[3]
[16] Sherman Estate instructs that to succeed, a party seeking to limit court openness must establish that 1) court openness poses a serious risk to an important public interest; 2) the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and 3), as a matter of proportionality, the benefits of the proposed order outweigh its negative effects: at para. 38. Only where all three prerequisites have been met will a discretionary limit on court openness be properly ordered: Sherman Estate, at para. 38.
(i) Children’s Privacy Is an Important Public Interest
[17] Privacy interests may in some cases constitute an important public interest warranting limits on court openness. Where a breach of privacy amounts to a threat to dignity, revealing aspects of an individual’s “biographical core,” an important public interest will be engaged: Sherman Estate, at paras. 73-75. Information that could give rise to a serious risk to an important public interest may include subjection to sexual assault or harassment or detailed information about family structure: Sherman Estate, at para. 77. Further, a risk to some aspects of privacy may be tied to a risk of psychological harm: Sherman Estate, at para. 54; S.E.L. v. O.V.P., 2022 ONSC 1390, at para. 28. The key question is “whether the information reveals something intimate and personal about the individual, their lifestyle or their experiences”: Sherman Estate, at para. 77.
[18] While the court in Sherman Estate noted, in a non-family law context, the mere fact that some affected individuals may be minors is, without more, insufficient to “cross the seriousness threshold,” it acknowledged that minors are “especially vulnerable to intrusions of privacy”: at para. 92. This inherent vulnerability is confirmed and recognized in multiple legislative contexts across Canada. As stated by Abella J. in A.B. v. Bragg Communications Inc., 2012 SCC 46, [2012] 2 S.C.R. 567, at para 17:Recognition of the inherent vulnerability of children has consistent and deep roots in Canadian law. This results in the protection of young people’s privacy under the Criminal Code, R.S.C. 1985, c. C-46 (s. 486), the Youth Criminal Justice Act, S.C. 2002, c.1 (s. 110), and child welfare legislation, not to mention international protections such as the Convention on the Rights of the Child, Can. T.S. 1992 No. 3, all based on age, not on the sensitivity of the particular child … The law attributes the heightened vulnerability based on chronology, not on temperament. [Citations omitted; italics in original.] [19] Children’s privacy interests attract a higher level of protection than similarly situated adults: see R. v. Jarvis, 2019 SCC 10, [2019] 1 S.C.R. 488, at para. 86. This is often the case in the family law context.[4]
[20] This court has repeatedly recognized the importance of protecting children’s privacy interests. For example, in Ontario v. Ontario, Benotto J.A. emphasized at paras. 73-75 that children’s privacy rights are grounded in the CRC, which specifically provides at article 40(2)(b)(vii) that the special safeguards for children include the right to have “his or her privacy fully respected at all stages of the proceedings”. She also stated that, “[t]he child’s privacy rights, as with her other rights, are entitled to more, not less protection”: at para. 73. Further, in P1 v. XYZ School, 2022 ONCA 571, van Rensburg J.A. found that there was an important public interest in protecting the privacy of minors in litigation against their school, and that court openness would pose a serious threat to that interest: at para. 44; see also S.E.C. v. M.P., 2023 ONCA 821, at para. 65, leave to appeal to S.C.C. refused, 41121 (August 8, 2024).[5]
[21] Beyond the dignity interests engaged by privacy, the Supreme Court in Sherman Estate confirmed that the “list” of important public interests that could justify limitations on court openness is not closed, and could include, among other things, “physical safety”: at paras. 41-42, citing R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442, at para. 32, and Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, [2002] 2 S.C.R. 522, at para. 53. Kasirer J. also noted that the public interest in physical safety is not seriously debatable, stating: “[t]he administration of justice suffers when the operation of courts threatens physical well-being because a responsible court system is attuned to the physical harm it inflicts on individuals and works to avoid such effects”: at para. 72. Whether such serious risk exists must be examined on the facts of the case: Sherman Estate, at para. 85.
(ii) The Extent of the Restrictions
[22] A court considering imposing restrictions on openness must determine whether the order requested is necessary to prevent the serious risk identified, because alternative measures that would infringe less on open courts will not prevent the risk: Sherman Estate, at para. 104; Sierra Club, at para. 53. Measures sought could include a complete or partial sealing order, temporary or permanent publication ban, initialization, redaction of identifying information, anonymization, or some combination thereof. In Bragg, a case involving a young person alleging cyber-bullying, the Supreme Court recognized at para. 28, the “relative insignificance of knowing a party’s identity”, citing Binnie J. in F.N. (Re), 2000 SCC 35, [2000] 1 S.C.R. 880, where he referenced identity as a “sliver of information”.
[23] Orders prohibiting identity disclosure, such as initialization or anonymization, do not prevent the media from being present at the hearing and reporting on the facts of the case and the conduct of the trial: Bragg, at para. 28, citing Canadian Newspapers Co. v. Canada (Attorney General), 1988 CanLII 52 (SCC), [1988] 2 S.C.R. 122, at p. 133. The press, in other words, retains the ability to inform the public, with minimal impact on the public’s access to information. By contrast, sealing orders intrude much further on the open court principle, placing greater limits on the ability to report on the court proceeding. Accordingly, they are considered an exceptional measure: Sherman Estate, at para. 32.[6]
[24] The onus is on the person seeking to restrict court openness to show that the benefits of the order they seek outweigh the deleterious effects. That balancing is of course fact-specific. In undertaking the balancing inquiry, the court must consider whether the information sought to be protected is peripheral or central to the judicial process. The greater the centrality of the information sought to be protected, the higher the interest in ensuring that important and legally relevant information is open to the public: Sherman Estate, at para. 106; M.A.B., at para. 30.
(3) Notice to the Media
[25] As a matter of practice, the court should always consider whether notice should be given to the parties, the media and other directly affected individuals before implementing any measure that would limit court openness. This practice provides those affected with an opportunity to make submissions on the issue. The hearing judge ultimately has the discretion to decide whether such notice is required, and if it is, when the notice should be given: Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] 3 S.C.R. 835, at p. 837. . A. v. B.
In A. v. B. (Ont CA, 2025) the Ontario Court of Appeal granted a motion to quash a family law appeal, here from a motion order "declining to seal or otherwise restrict public access to the record or decisions in the Superior Court proceeding".
The court considers 'open court' privacy rights of children, here in a parenting context regarding interlocutory orders:[26] The relevant issue on this motion is about the appropriate appeal route and therefore which court has authority, under the Courts of Justice Act, to address the important privacy interests raised by a challenge to the motion judge’s order. Undoubtedly, children’s privacy interests can necessitate the application of special safeguards, which include the right to have their privacy respected “at all stages of the proceedings”: Ontario (Children’s Lawyer) v. Ontario (Information and Privacy Commissioner), 2018 ONCA 559, at paras. 73-75, leave to appeal refused, [2018] S.C.C.A. No. 360. To state that such interests are “collateral,” in the language of the caselaw about routes of appeal, in no way implies that those interests are not centrally important to the child or that the motion judge’s manner of dealing with them is undeserving of careful review, in an appeal brought in the proper forum.
[27] We would add the following: in virtually any family law case where there are parenting issues before the court, interlocutory orders may have significant and long-lasting effects on children. Issues related to parenting schedules, interim relocation, and medical decision-making for example, may all have lasting implications. The same may be the case with certain support or property-related decisions. However, as seen above, in assessing whether an order is final or interlocutory for the purpose of appeal routes, “effects” are at the wrong end of the telescope. This court’s decision in Paulpillai instructs that it is the legal nature of the order and its relationship to the substantive issues in dispute that must guide the analysis.
[28] The order sought to be appealed is interlocutory and any appeal lies to the Divisional Court with leave.
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