Case law: Sealing a family court order

flower handed by a child to a woman

G.M. v R.M. 2015 CarswellOnt 9375: We have provided a summary of the substance of this case earlier. It dealt with custody and access issues relating to a child who identified as gender fluid/transgender, and each parent wished to deal with this issue differently.

Because of the nature of the issue at the heart of the custody case, the media was very interested in the story, and the parents sought to protect the privacy of their family by having the court file sealed.

In making his decision, Justice Gray notes:

It has been said many times that the open court principle is of fundamental importance in a democracy. Justice ought not to be administered behind closed doors. Open courts are important so that the public can be satisfied that justice is being administered properly. 

However, the open court principle is subject to exceptions. Where the interest in privacy outweighs the public’s right to know, orders can be made to restrict the public’s right to know. However, such orders should be carefully tailored, and limited to what is actually necessary to protect legitimate rights of privacy. 

Privacy interests are particularly compelling when it comes to the interests of children. In certain defined circumstances, this has achieved legislative recognition. 

Justice Gray reviews case law where this issue has arisen in the past. One of the cases he considers is the divorce case of Colonel Russell Williams, which was notorious because Colonel Williams had been convicted of raping and killing two women and of a number of other serious sex crimes. His wife sought a non-publication and sealing order with respect to the divorce proceedings. The trial judge granted the order, but the Court of Appeal set it aside, noting that Colonel Williams’ wife did not provide sufficient evidence to establish that the order was necessary.

Justice Gray also examined the case of C.M.G. v R.G. [2012] O.J. No. 1884 (S.C.J.), in which Justice McKinnon ordered that the children and parties be identified by initials only and that portions of the file be sealed in order to protect the privacy of vulnerable children. In another case, W.W. v. X.X. (2013), 31 R.F.L. (7th) 418 (Ont. S.C.J.), the court did not seal the file but permitted the parties to proceed by way of initials and prohibited the publication of any information that would identify the child.

In this case, Justice Gray ordered that the title of the proceeding be amended to use initials, that no one publish or make public information that could identify the parties or the children and that anyone who has or will have access to the court file be prohibited from communicating the identity of the parties of the children to anyone else.