27 July 2015

Sealing of Family Law Judgments: Supreme Court Issues Important Decision

Mr. Justice Abrioux of the British Columbia Supreme Court has just provided his reasons in M. v M., a high-conflict family law dispute featuring allegations of abuse and parental alienation, and the evidence of no less than six expert witnesses. Although the case is well worth reading for the court's treatment of these issues, and perhaps especially for its scathing criticism of one expert in particular, I was struck by the court's discussion of the law on the sealing of judgments, a problem that rarely sees the light of day.

Owing, I expect, to the nature of the allegations made, the father sought an order that the judge's decision be sealed. This application is unusual in family law cases for two reasons. First, because of Supreme Court Family Rule 22-8(1) and Provincial Court Family Rule 20(10) which restrict access to court files to lawyers and to the parties to a file. Second, because of the court's increasing habit of referring to the parties and their children by initials to protect their identities... like this case, M. v M.

Although counsel came up empty when the judge asked them to research the requested order, the judge did find some law on the matter starting from the other end of the problem, the principle that courts are open to the public (cites included so that the research needn't be reinvented, important bits in bold):
"[7] ... there are established principles which govern this situation. Absent exceptional circumstances, a court is not a private forum. See A.B. (Litigation Guardian of) v Bragg Communications Inc., 2012 SCC 46 at para. 11; R.B.L. v British Columbia, 2005 BCSC 1068 at para. 29; Reference re: Criminal Code of Canada, s. 293, 2010 BCSC 1351 at para. 53; Re Vancouver Sun, 2004 SCC 43 at para. 23. 
"[8] The principle of an open court applies to family law cases and matrimonial court material: K.V.P. v T.E. (1998), 56 B.C.L.R. (3d) 344 (S.C.); Michie v Michie, 2010 BCCA 232 at para. 10. As noted in K.V.P. at para. 7:
… The onus of demonstrating harm is a high one. It is not enough that the defendant may be embarrassed or that he and his family may be subject to unwanted publicity. …
"[9] I have concluded that the overriding principle of the openness of the courts should not be displaced in the circumstances of this case. 
"[10] It is an unfortunate reality litigants face when, unable to privately resolve their highly personal disputes, there is a trial of the proceeding, which is in the public domain. 
"[11] I am mindful of the children’s best interests and in these reasons for judgment will attempt to anonymize certain individuals and events to the extent possible. But as is evident from the recent lengthy reasons for judgment of Mr. Justice Kent in N.R.G. v G.R.G., 2015 BCSC 1062, a case that had several of the features of this proceeding, it is difficult for the court, notwithstanding its best efforts, to insulate children from the effects of published reasons for judgment
"[12] Insofar as this proceeding is concerned, the number of witnesses who testified, the regular attendance in the courtroom of many friends and supporters, particularly on the claimant mother's side, and the fact I will be directing that these reasons for judgment be provided to the treating therapists, militates against providing oral reasons for judgment. In any event, providing oral reasons would not necessarily preclude these reasons from entering the public domain."
And there you have it. The principle of court openness is an "overriding principle" which applies in family law matters just as it does in non-family civil matters, and which will not be circumvented absent "exceptional circumstances." Moreover, the tawdry complaints that so many high-conflict file seem to involve do not qualify as "exceptional." In fact, the publication of such complaints is just one of the risks that litigants take when when they insist on resolving their disputes at trial, and perhaps ought to serve as a disincentive to litigation.

I haven't supplied the links to the cases mentioned by Justice Abrioux. Those cases, including K.V.P., can be found on CanLII.

21 July 2015

Important Evaluation of JP Boyd on Family Law: Courthouse Libraries BC needs your help

If you'll recall from my post of 12 March 2015Courthouse Libraries BC is evaluating its collection of wikibooks maintained under their Clicklaw banner, including own wikibook, JP Boyd on Family Law. The evaluation of Clicklaw's other wikibooks ended last month, and the evaluation of JP Boyd on Family Law will end this Friday.

CLBC and I need your input to tell us what works and what doesn't work about the wikibook. If you haven't done it yet, please visit JP Boyd on Family Law and fill out our very short survey. The survey should only take two or three minutes to finish and you'll be entered into a draw to win our last monthly $100 prepaid Visa gift card.

Thank you for your help!