“The Children’s Law Reform Act contemplates that in some cases in the family context, it will be appropriate to restrict openness of the court process. Specific considerations include the nature and sensitivity of the information in the documents in the court file, and whether not making the order could cause harm to a person.
Section 70 of the Children’s Law Reform Act provides as follows:
70 (1) Where a proceeding includes an application under this Part, the court shall consider whether it is appropriate to order,
(a) that access to all or part of the court file be limited to,
(i) the court and authorized court employees,
(ii) the parties and their counsel,
(iii) counsel, if any, representing the child who is the subject of the application, and
(iv) any other person that the court may specify; or
(b) that no person shall publish or make public information that has the effect of identifying any person referred to in any document relating to the application that appears in the court file. 2009, c. 11, s. 18.
Considerations
(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.
Order on application
(3) Any interested person may make an application for an order under subsection
In L.C.F. v. G.F. 2016 ONSC 6732 (CanLII), for example, Justice Harvison Young considered a request for a sealing order and publication ban in the family context. She held that “in any and all judicial proceedings where judges are asked to utilize their discretion to order that public access to a file or proceeding be restricted, courts must apply the well-established Dagenais/Mentuck test: Re Vancouver Sun, 2004 SCC 43 (CanLII) at paras. 23-27… There can be no doubt that any discretion within the family context must be exercised within the constraints of the Dagenais/Mentuck test.” See para. 17. Judges must engage in a case by case analysis.
At the same time, there is an “obvious and important public interest in protecting vulnerable children from suffering trauma caused by their parents’ legal proceedings.” See Danso v. Bartley, 2018 ONSC 4929 (CanLII) at para. 52 per Justice Myers. In L.C.F., supra, Justice Harvison Young noted that the analysis with respect to children is “somewhat different,” and that where courts step in to protect children in family cases by imposing restrictions, “the children are demonstrably vulnerable” and generally younger (the youngest child in that case was 16). She notes that publication bans are restricted as much as possible and that sealing orders are rare. See paras. 47-50.”