Should privacy be granted sparingly in court proceedings? Or should it be allowed if both parties consent?
A recent article by Ian Mulgrew of the Vancouver Sun comments on a judgment in which Justice Griffin of the Supreme Court of British Columbia criticized the practice of obscuring names in family law proceedings. In the case of A.B. v. C.D. the husband brought an application to review the amount of spousal support he had to pay to his wife. The husband was paying $11,500.00 per month based on the parties’ separation agreement signed in 2008 (his average income over the three years since 2008 was approximately $57,000.00 per month).
On the matter of privacy, and obscuring names, Justice Griffin stated:
Lastly, I observe that the parties entered into a consent order early on in the proceeding to camouflage their names in any court judgment by use of initials. Counsel for the respondent was quite adamant that this remain in place. I am not convinced that such a consent court order is appropriate or that it can bind subsequent judges. As held in M.E.H. v. Williams, 2012 ONCA 35 at para. 34:
“…the centrality of freedom of expression and the open court principle to both Canadian democracy and individual freedoms in Canada demands that a party seeking to limit freedom of expression and the openness of the courts carry a significant legal and evidentiary burden.”
The interest in open court proceedings is a public interest, not something that private parties can negotiate away. Furthermore, the fact that parties have to put their names to their pleadings in litigation promotes honesty and reasonableness. Where one party happens to be a lawyer, that status does not warrant special treatment as many vulnerable parties do not have the luxury of anonymity in litigation. On occasion where some particular information could cause harm if released, such as information that could be the subject of identity theft, reasons for judgment can be crafted to simply not refer to the confidential particulars.
In the proceeding before me I did not see any information that would have justified hiding the litigants’ names. Having said that, given that no party sought a change in this status and it was so strongly opposed by the Husband, and given that I have not heard submissions on it, I will for the time being not make any ruling changing the style of proceedings.
As an interesting note – in some cases, such as C.A.R. v. R.M.R.,the decision of the court provides details that are so locally well known, it is not difficult to determine who the parties involved are.
Who could this be?" The respondent is a former Olympic athlete. He gained fame in his sport in the late 1990s...In 2009 or 2010 the respondent accepted a nomination to run as a candidate in a Federal election."
As in many high profile case, there were parties who wanted to know the details of the M.E.H. v Williams divorce. Media groups such as the Ottawa Citizen and the Canadian Broadcasting Corporation were granted intervener status in the motion and sought to have the non-publication and sealing order lifted.
As sumarized in an article on CBC:
The appeal court said in its decision that the personal concerns of public embarrassment are not enough by themselves to justify non-publication or sealing orders and said assessing emotional distress versus emotional harm is a matter of degree to be measured against the media’s right to report on court proceedings.
The law in regard to publication bans generally requires two step inquiry (as directed by the Supreme Court of Canada):
such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and
the salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice.
What do you think?
Should parties be able to agree to a publication ban in their divorce proceedings, or is it in the interest of the administration of justice to have names made public?
One option for separating spouses, if they do not want their divorces to be in the public eye, is to agree to a confidential dispute resolution process, such as mediation or arbitration.
While the parties (if married) would still have to file court documents to have a divorce granted, they could limit the information made public to the basics (their names, their date of marriage etc.). If all you are seeking from the court is a divorce, and you have no children, the information you need to provide is quite limited.
Why have I written three blog posts this month about what to wear to court? Does the court (or anyone for that matter) even notice what you are wearing to court? The answer is yes! It has even been noted in written judgments of the court:
On two dates when LD was being cross-examined, she attended Court in rather large, bright pink fuzzy bedroom slippers which was out of sync with her usual manner of attire, and certainly out of the norm for any reasonable person’s court attire.
Women should wear something to court that they feel comfortable in. Something that fits well and can be described as “business casual” attire (something you would wear to an interview for an office job).
A good look for women (from top to bottom) is:
Wear a cardigan or blazer over any sleeveless top
A neutral coloured blouse, or dress shirt that is ironed, clean and properly fitted. The shirt should not show too much cleavage (also consider that court may be stressful so wear a shirt that doesn’t show sweat);
A matching sweater, cardigan, or blazer;
An ironed skirt (no shorter than one or two inches above the top of your kneecap) or ironed dress pants;
My favorite thing to wear is a “suit dress” – they are very comfortable and you don’t have to iron a blouse (see above);
Tights (or nylons) if you are wearing a skirt or socks that match your shoes and pants; and
Conservative shoes (closed toe) that are easy for you to walk in.
Also consider, accessories:
A satchel, computer bag or briefcase to carry any documents (do not shove them all into your purse);
Do not wear anything that indicates you disrespect the court
Jewelry (keep it simple, tasteful and modest);
Nylons (bring an extra pair in your purse).
Also consider, grooming:
Keep your makeup natural;
Do not apply makeup in the courtroom;
Keep your nails clean and neat;
Remove piercings (with the exception of an earring in each ear);
Keep your hair out of your face and neat looking.
When you are getting ready, focus on the idea: conservative, professional and trustworthy. Outfits that invoke thoughts of summer, Lady Gaga, and fashion forward should certainly be worn with caution, and not without a second opinion.
It is important to note that different judges have different ideas about what is appropriate for court. When I was in law school, a girl went to court in a suit with dress capri pants, and was told by a judge that they were not appropriate.
On the other hand, when someone I know was working , she found out from a reliable source that not all judges felt it necessary to wear nylons in the summer (and we were all pleasantly surprised!). In any event, I always err on the side of caution and wear nylons (subject to any last minute runs etc…see above).
There are lots of general guidelines online for men about what to wear to court, such as: what you would wear to church, an office job interview or “business casual”. When preparing for family court, I advise men to wear something they feel comfortable in and that shows respect for the court.
However, these general descriptions can be interpreted in many different ways – something you feel comfortable in could be a bath robe, there are lots of different interpretations of “something that shows respect for the court”, and what you wear to church might not be what everyone wears to church.
I asked our resident fashion expert, Carey Davies, to help me create a head-to-toe list of what to wear to court.
A good look for men (from top to bottom) is:
A neutral colored dress shirt, ironed, that is clean and properly fitted (also consider that court may be stressful so wear a shirt that doesn’t show sweat);
A neutral colored suit jacket or sports coat as it may be cold in the courtroom (note: a “sports coat” is NOT an Adidas track jacket );
Ironed slacks (black, navy, grey, or khaki);
Dark dress shoes that match your pants; and
Dark socks that match your shoes.
Also consider, accessories:
A tie – if you wear a tie in your every day life, I would suggest wearing a tie to court. If you don’t wear a tie in your every day life I would not suggest wearing a tie (it might get uncomfortable and look unnatural). The tie issue is covered in more detail in this useful Wall Street Journal Article.
Cufflinks – again, if this is part of your normal day to day wear, you might want to include these. If you are bringing an application and/or giving evidence to your difficult financial situation it is best to avoid wearing flashy accessories – no gold cufflinks or Breitlings.
A sweater – a dark v-neck sweater you can wear over your dress shirt might be a good idea if the weather is cold; or
A briefcase, laptop bag or satchel to keep your documents in (always best to be organized before you get to the court room).
Getting dressed for court does not mean that you have to buy all new clothes. There are probably things in your closet that will work well. You can also consider borrowing something from a friend or relative. If you feel more confident in a new shirt, there are usually some deals on men’s basics (going to court does not require a $300.00 shirt from Harry Rosen). Finally, before leaving the house for court it may be a good idea to get a second opinion about what you are wearing – ask a friend who has good style and judgment, your lawyer, or your family (do not ask your soon to be ex-partner on the other side of your divorce).
By Guest Blogger: Jane Marsden, Articled Student, Hart Legal
Any true Sex and the City fan will know that one of the harshest ways to be broken up with is by a Post-it-Note.
When the “Post-it-Note Episode” aired, my friends and I were outraged (yes, we know it’s only a show…). In this episode, Carrie Bradshaw’s boyfriend, Jack Berger, sneaks out in the middle of the night, leaving a post it note in his place which reads: “I’m sorry. I can’t. Don’t hate me.”
However, maybe Berger’s breakup method wasn’t so callous after all…
"Perfect for the office romance?"
Although anything short of a face-to-face conversation seems like an incredibly rude and gutless way of breaking up with someone, these days a Post-it-Note almost seems like a personal, or, at the very least, private way of breaking it off.
While the Post-it-Note Episode aired less than ten years ago, a lot has changed in that short amount of time. Since then, Facebook, MySpace and Twitter have become, for many, primary means of communication; they have added a whole new dynamic for people trying to navigate relationships and love.
Social networking sites raise a number of interesting legal issues, including, does a Facebook status change constitute written notice of a breakup?
For example, it is not uncommon for unmarried couples to enter into cohabitation agreements before they start living together, or before they get married. Couples enter into these agreements for a variety of reasons, such as having children from a previous relationship, wanting to protect assets, or setting out each other’s expectations for the day-to-day workings of the relationship.
A common clause in the cohabitation agreement provides that the parties’ relationship will be deemed to have ended on the first of the following events to occur:
the parties live separate and apart as a result of a breakdown in the relationship for a continuous period of more than 90 days;
the date a court grants an order recognizing that the parties have no reasonable prospect of reconciliation with each other; or
the date a party delivers a written notice to the other that the relationship is terminated.
So the questionis: is it enough for your partner to change his or her Facebook status from “in a relationship” to “single” for this to constitute “written notice” that the relationship has come to an end?
Although Canadian courts have yet to explore this specific issue, we do know that social networking sites have come up in matrimonial cases; usually around evidentiary issues. In one recent case, W.M.W. and K.C.M. v. J.W. and M.M., Judge T.S. Woods considers Facebook evidence to show the nature of a relationship:
I must acknowledge in this connection that there is evidence to show that Biological Mother JW is in a new, live-in relationship with the individual to whom I have referred as “Boyfriend JG”. However, the evidence also shows that that relationship has had its volatile moments. A printout of messages published on Biological Mother JW’s Facebook page reveals that as recently as October 30-31 of this year (shortly before the hearing), she considered that Boyfriend JG had unceremoniously “dumped” her.
The Guardian cited a 2010 survey by the American Academy of Matrimonial Lawyers which states that four out of five lawyers have reported that increasingly, divorce cases have relied on evidence taken from social networking sites.
It seems to be only a matter of time then before the courts will be called upon to decide whether someone’s change of Facebook status change is enough to constitute written notice that the relationship is over.
Clients ask me all the time: what should I wear to court?
"Do not wear - even if you are seeking a no contact order"
I advise clients to wear an outfit that they feel comfortable in, that conveys respect for the court, and that is something they consider appropriate to wear to an interview for an office job. I wear a suit to court (black or dark grey usually), so I don’t have to put too much thought into what I am going to be wearing each day.
For people who don’t attend court regularly, I will be publishing two blogs later this month about what to wear to court (one for men and one for women).
This blog is about what not to wear to court. I have actually seen people wearing all of the items listed below to court over the years. If you are heading to a day in court, do not wear the following:
T-Shirts (especially with offensive language or drug references – sorry Allie, no hello Kitty T-Shirts either);
Exercise clothing (no lululemon);
Clothing showing lots of skin (sleeveless shirts, short shorts/skirts, low cut tops, stomach bearing tops, anything showing your underwear or tattoos);