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Divorce: Mr. Smith v. Mrs. Smith… if that is your real name?

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."

In the case referenced by Justice Griffin, M.E.H.Williams, the Ontario Court of Appeal lifted the publication ban on divorce proceedings between David Russell Williams and his wife Mary Elizabeth Harriman (“M.E.H.”).  The publication ban, originally granted by the Ontario Superior Court of Justice, prevented the  publication of her name, address, employer, income or medical information.

As in many high profile case, there were parties who wanted to know the details of the M.E.H.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.