Family law cases often an open book

CFamily Law anada’s incoming Governor-General, Julie Payette, recently sought to have the contents of her Maryland divorce file sealed. It’s a sentiment that many who have gone through a divorce probably share.

Unfortunately for Payette and for most Canadians, the courts here set a high bar for restricting the public’s access to court files.

Except for Quebec, all other Canadian provinces presume that both civil and family litigation will be open and subject to public scrutiny — even those involving the most intimate details of a divorcing couple.

And Family law court files are often full of such details.

While the conduct of a spouse is generally irrelevant under the Divorce Act and the provincial legislation, a spouse’s affairs, sexual proclivities, naked Instagram photos or references to abuse at the hands of the other spouse will nevertheless inevitably must ask the court to restrict the usual open nature of both the court file and any court appearances made in the proceeding itself.

Before the court can grant an order that restricts the public’s access to the court file and any proceedings that occur in court, the court must decide that restricting access is necessary to prevent a serious risk to the administration of justice. If the court answers this part of the test ‘yes’, the court must balance the salutary effects of a publication ban against the deleterious effect on the rights and interests of the parties involved.

From a policy perspective, there is a rationale for this high standard: justice must not only be done, it must be seen to be done. To see “justice done” judges must be accountable for their decisions. Public decisions educate society and lead to debate, and sometimes, to law reform.

Unfortunately for family law litigants, the 1988 B.C. case of K.V.P. said it best: “It is not enough that the defendant may be embarrassed or that he and his family may be subject to unwanted publicity.”

The courts are well aware that the vast majority of Canadian case law decided by our courts is publicly available on a free website, CanLii. In addition, of course, many litigating spouses provide a great deal of information about their ongoing litigation through their own social media accounts. Making all or part of the court file private or initializing the litigants’ names may well be, in reality, locking the barn door after the horse is stolen.

Where there are matters that may adversely affect children, while the Mentuck test is applied, the courts appear to be less rigorous in its application, although even then, court files are seldom sealed in their entirety. Judges have limited the public’s access to, or anonymized court files where a child is highly anxious and seems fixated on suicide, if a child has gender identification issues, or where there are issues regarding a child and the child’s sperm donor.

Even in these circumstances, however, it is rare that all of a court file is sealed.

Where the issues relate to the disclosure of a parties’ financial matters only, the courts are generally unsympathetic to the privacy concerns of a spouse.

In some parts of Canada, this has led to family litigants with financial means to flock to the mediation and arbitration process, which is private and confidential. To resolve a family dispute privately, however, both spouses have to agree to do so and must pay for the mediator/arbitrator’s services.

Vindictive spouses seeking leverage in negotiations or who wish to embarrass their spouse can choose not to consent to the private dispute resolution process.

It’s enough to make many think that perhaps Quebec has this issue right.