Saskatoon StarPhoenix

Payette drops legal battle to seal records of her divorce

- BRIAN PLATT

Julie Payette, the former astronaut who will be Canada’s next governor general, is ending a month-long legal fight to remove the court files of her divorce proceeding­s from the public record.

A coalition of six Canadian media organizati­ons — Postmedia, CBC, CTV, iPolitics, the Globe and Mail and the Toronto Star — challenged Payette’s attempt in a Maryland court to seal her divorce file, which in the State of Maryland is public by default. A Maryland court ruled last month in favour of the media’s arguments that the bulk of the file should remain public, but Payette immediatel­y launched an appeal.

On Monday afternoon, however, as those media outlets were preparing to publish stories revealing Payette’s legal efforts, her lawyers announced she would drop the appeal.

“Very few families are immune from difficult moments in life — mine included,” Payette said in a statement released to the coalition through a Rideau Hall spokespers­on Monday. “I have worked hard to put these difficult events behind me and move on with the best interest of my son in mind.

“Though a Maryland court was currently considerin­g an appeal to maintain our family’s privacy, for reasons of transparen­cy and to leave no doubt, I have decided to voluntaril­y drop this appeal and release the divorce files. I trust Canadians and media will distinguis­h between matters of public interest and private life.”

The files, which were under temporary seal while Payette appealed, are expected to be made public again later this week.

Maryland Circuit Court Judge David W. Densford had earlier rejected Payette’s arguments for secrecy, finding in a one-day hearing on July 26 that Payette had no compelling reason for having the court file sealed and ruling that the vast majority of the court file be kept public. But Payette’s appeal of that decision was scheduled to stretch into November — well past the Oct. 2 date on which she will be formally installed as governor general. Payette filed the motion to seal her divorce file on July 18 — the same day iPolitics first reported that in 2011 police had charged her with second-degree assault. That charge was withdrawn shortly after it was laid, and Payette later had it expunged from official records. In a statement she acknowledg­ed the charge, but said she was “immediatel­y and completely cleared” of the allegation. No further detail on the matter has been released.

Shortly after the assault charge came to light, CTV and the Toronto Star reported another incident in 2011, in which Payette, while driving a car, fatally struck a pedestrian. The police investigat­ion subsequent­ly cleared her of fault in the collision.

As governor general, Payette will be the representa­tive of Canada’s head of state, Queen Elizabeth II, and the commander-in-chief of the military.

While it is for the most part a ceremonial position, acting on the advice of the Prime Minister, there are times when the governor general’s discretion­ary powers become crucial. In 2008, for example, then-Governor General Michaëlle Jean worked to defuse a potential constituti­onal crisis, granting then-Prime Minister Stephen Harper’s request to prorogue parliament rather than calling a new election or inviting the opposition to try forming a government.

“The governor general is more than a figurehead — she plays a vital role in our democracy,” said Gerry Nott, Postmedia’s senior vicepresid­ent for content. “These documents are on the public record and should remain there. Canadians need to be confident that the government’s vetting processes are thorough and rigorous.”

In an affidavit originally filed in support of sealing them, Payette said the records contained informatio­n about “finances, personal and real property, child support and personal matters about our marriage.” Calling it a “difficult and personal case,” Payette said she has “reason to believe that person(s) may be trying to expose facts of this case to people in Canada in an attempt to publicly ridicule me and I believe these actions will cause irrevocabl­e harm to not only myself but my son,” a minor.

During the July 26 hearing, her lawyer, Bryan Dugan, made an unusual request to have Payette testify by phone — but absent an agreement from the coalition’s lawyers not to share with their media clients the contents of her testimony, he asked Densford to agree in advance to seal Payette’s testimony. As Densford wouldn’t agree to do that, Dugan then sought to have the courtroom closed during Payette’s testimony. When Densford rejected that effort as well, she decided not to testify at all.

In his ruling, Densford said the privacy and protection concerns expressed by Payette’s lawyer were not a compelling enough reason to shield the files from public view.

“Mr. Dugan has referenced generally the rights of mom and child, and he’s correct on those,” he said. “I’ve already concluded they are outweighed by the need for transparen­cy and public interest in this open file. It’s presumed to be open, and I’ve heard nothing that would persuade me to overcome that presumptio­n.”

Densford did order that a few small portions of the records relating to Payette’s son and her finances be kept secret, which the media coalition did not oppose. He also sealed a small portion that he described as “self-serving, uncorrobor­ated, and scurrilous.”

The other party in the divorce proceeding­s, Payette’s ex-husband Billie Flynn, has said through his lawyer he sees no reason to seal the file, save for any parts specifical­ly to do with their son.

A government source told the National Post that no taxpayer funds are being used to pay Payette’s legal bills in these proceeding­s.

Payette and Flynn moved to Maryland at the end of 2010, when Payette took up a research post at the Wilson Centre in nearby Washington, D.C. The divorce proceeding­s between Payette and Flynn began in 2013 but stretched out for years, well after the divorce was granted in April 2015. Motions in relation to child support were still ongoing this year, but Payette withdrew them in June — just weeks before she was named as Canada’s next governor general.

Protection of privacy was not the only argument Payette’s lawyers made. In the motion to seal, they also raised the expunged assault charge, arguing the media “wants to review the divorce file in the hopes of finding some informatio­n relating to the expungemen­t.”

However, when the judge asked during the hearing if the divorce files make reference to the expunged charge, Dugan hesitated, and then spoke carefully. “I will say this: There is no allegation in that file, which I read today from beginning to end, saying that my client assaulted Mr. Flynn,” he responded.

Dugan then said there are other allegation­s in the file that justify the sealing motion. “There are some legal causes of action that are pled that cause me concern,” he said. “Not factual, legal causes of action that are pled.”

Payette’s lawyer also pointed out that divorce proceeding­s are confidenti­al by default in her home province of Quebec, and argued the media companies are trying to “circumvent” that rule. The media companies responded that Payette is simply bound by the rules where the case has been filed.

“Ms. Payette chose to invoke the adjudicato­ry power of the courts of this State, and as a result she cannot escape American constituti­onal, common law, and statutory principles that govern the record in this case,” the media companies said. In his decision, Densford agreed.

 ?? MATT STROSHANE / GETTY IMAGES ?? Julie Payette, Canada’s next governor general, has dropped a bid to keep her divorce file from public eyes.
MATT STROSHANE / GETTY IMAGES Julie Payette, Canada’s next governor general, has dropped a bid to keep her divorce file from public eyes.

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