Ontario Court of Appeal sets access restrictions to protect child's privacy

The judge said the child had been wrongfully retained in Canada. The judge added that this case did not trigger the exception to a mandatory return based on the risk of serious harm. 

The appellant brought an appeal challenging the judge’s order and a motion seeking: 

• access restrictions concerning the court file for the appeal and the decision challenged on appeal 
• a publication ban regarding information that could identify the parents and/or their child 
• a sealing order governing the IRB’s decision granting the child refugee status and other documents created under the Immigration and Refugee Protection Act, 2001 (IRPA) 
• an order initializing the file 

The Office of the Children’s Lawyer (OCL), acting for the child, supported the appellant’s motion and the requested relief. 

The respondent did not object to the request for initialization and a non-publication order for information possibly identifying the child. The respondent otherwise opposed the motion. 

Restrictions imposed

The Court of Appeal for Ontario set specific restrictions on access to safeguard the subject child’s interests. The appeal court’s order: 

• anonymized the names of the parties, their child, and the child’s family members 
• identified the case by the randomly generated names “Kirby” and “Woods” 
• prohibited anyone from publishing or publicly sharing information that could identify the parties or their child 
• sealed the IRB’s written decisions and any other documents in the court record created under the IRPA 
• limited access to this portion of the file to the court, its authorized employees, the parties, their counsel, and the OCL 
• required notice to the parties under s. 1.3 of the Family Law Rules, O. Reg. 114/19, for any access request regarding the remaining unsealed court record under s. 137(1) of Ontario’s Courts of Justice Act, 1990 
• directed anybody gaining access to unredacted copies of documents in the court record to treat them as confidential and refrain from sharing them or information in them in any format 

The appeal court ruled that keeping this information safe would not prevent the media from attending the proceedings, reporting on the matter’s non-identifying and non-confidential details, and sharing them with the public. 

The appeal court held that the IRB’s decision awarding the child refugee status and the IRB case file were confidential under s.166(c) of the IRPA. 

The appeal court said this case involved serious allegations of violence between the parents and against the child, and a serious risk to the critical public interest of safeguarding a vulnerable child’s sensitive information. 

The appeal court noted that the child expressed fear that publicizing the information would jeopardize her physical safety, given that the case record and the prior decisions included deeply intimate and personal details of her perspectives, preferences, and experience. 

In reaching its findings, the appeal court applied the relevant legislation and the principles stated in Sherman Estate v. Donovan, 2021 SCC 25, [2021] 2 S.C.R. 75.