Recently, there has been a new twist in the divorce laws in Toronto. The court of appeal has warned judges against giving out sealing orders, anonymity orders, publication orders and other privacy orders in relation to divorce cases. These orders can only be handed out once it is determined that there is a serious threat to the fair administration of justice after the case undergoes “close scrutiny”.
Opinions from the industry
Justices Robert Armstrong, David Doherty as well as Alexandra Hoy put aside a sealing order and the publication ban that was given to the estranged wife of serial killer Russell Williams last year. This strongly expressed the open court principle of the court. These orders protected the identity not only of the wife but also of her employer from the public and media. In support of his action, Doherty stated that according to the evidence the orders were not necessary to ensure if justice was not compromised.
Media lawyer, Richard Dearden was of the opinion that even when parties ask for anonymity orders, publication bans or sealing orders the open court regulation applies. According to this law a notice must be given to the media even on these orders.
According to Philip Epstein, editor of the Reports of Family Law, this judgment by the Court of Appeal will bring in an increase in the practice of judges that are giving anonymity orders. He also stated that this is not necessarily a positive development for the divorce laws, if courts want to be open in terms of granting justice, initializing the cases can accomplish that and there is no need to publish the intimate details of the parties lives. Epstein and Dearden agreed that in the Russell Williams case obtaining privacy orders will be a difficult task.
A Prime example – M.E.H vs. Russell Williams
The Court of Appeal labeled Williams wife as just another victim of his corruption. But the court also agreed that it gave in too easily to the wife’s claims that making the case public would jeopardize her mental health and employment. Justice Doherty posed the question, that rather than wondering if there is any fault in allowing the proceedings to take place with anonymity, the court should question, if the applicant has shown her justice being compromised without the requested protective orders. He also stated that emotional distress and embarrassment does not justify the protective orders.
He noted that opinions from medical experts that are rooted in powerful evidence of the circumstances and stating the condition of the accuser will be vital in determining any emotional or physical harm posed. Doherty added that the Dagenais/Mentuck test was administered by the motions judge and William’s wife did not meet its standards of requiring the protection orders.
The psychiatrists’ opinion was primarily based on his own assumptions of the nature and impact of the media’s coverage on the applicant. Finally, the Court of Appeal put aside the sealing orders made by Justice Jennifer Mackinnon in relation to the revised divorce laws, excluding details like the wife’s bank account number, social security number, date of birth and certain medical details.