Speaker's Corner: Vikileaks case shows need for privacy in family court files

If you ever wondered what the real housewives of your local suburb were up to, there’s an easy way to find out. Just walk on down to a courthouse near you and ask to see their file.  

What goes on in the confines of your home is expected to stay private. Unfortunately, though, people tend to forget that all of the scandalous details of divorce proceedings in Ontario are available to the public. Ontario isn’t the only province where that’s the case.

The person behind @vikileaks30 who revealed the sordid details of the divorce proceedings of Public Safety Minister Vic Toews in Manitoba got them legally. Someone merely walked up to the courthouse and put in a photocopy order.

For a variety of reasons, this is troubling to those engaged in family-related litigation.
The information in any particular person’s file includes, but is not limited to, documents such as the application, sworn financial statement or affidavit.

The substance of the information is almost limitless, depending on the circumstances, but you can be certain that an individual’s address, employment, banking, social insurance number, date of birth, and income tax information will all be accessible within the file.

The scope of the information often depends on the hostility between the parties and the complexity of their matter.

For example, if one of the parties is self-employed and has a plethora of income-generating assets or properties, the litigants may turn to experts to determine income or valuate the business.

In such a case, there may be hundreds of financial documents produced, exchanged, and filed with the court by way of affidavit evidence.

There are three particularly troubling side-effects to the accessibility of the information within a family court file. First, it exposes people to identity theft, a growing concern in the age of technology.

Second, it allows anybody out there who’s curious to find out how much money you make. Third, it makes a vendor of a business or real estate vulnerable to potential buyers if the litigant is looking to sell.

There are some mechanisms in place to protect litigants. For example, it’s possible to redact certain information where a party is legitimately concerned about safety. At the same time, counsel can agree not to list full bank account numbers on financial statements.

Despite such measures, most of the information is inevitably going to be available.

This fact was abundantly clear when a member of the Liberal Party of Canada, identified as @vikileaks30, released a series of tweets based on actual excerpts from Toews’ family court file in an attempt to criticize his proposed bill to combat cybercrime.

At the same time, @vikileaks30’s actions once again highlighted the unintended consequences we endure as a society when court files are totally open to the public.

Having said that, if, unlike Toews, you have nothing embarrassing or immoral to hide, then freedom of information isn’t necessarily a significant hindrance for you.

However, a party in a family law dispute may air all of the family’s dirty laundry, which could affect someone’s business or employment.

I would suggest that it’s now time for the court to ensure the maintenance of some privacy such that the financial information filed with it won’t be available to the public.

In addition, I would also propose referring to all family law cases by the parties’ initials or a number in order to guard against disclosing their private information.

Andrew Feldstein practises family law at Feldstein Family Law Group.

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