Shielding Children from High-Conflict Litigation

December 14, 2023
Entisar Bukair

Article written by Entisar Bukair

High-conflict litigation in family law is a whirlwind of emotions. The parties are individuals whose entire lives—including those of their children—are thrust into the court system and the public eye. It's a battle where privacy is as much at stake as any legal argument.

At the heart of these legal battles are not just the disputing parties but also the silent witnesses—the children. The implications for children caught in high conflict litigation can be profound including the potential for both emotional and psychological harm. For these reasons it is important to explore the available options for protecting our children from high-conflict litigation. 

A little girl presses her finger in front of her and bright futuristic graphics appear on privacy.

The Courts' Shield: Protecting Privacy in the Public Eye

The Open Court Principle is a cornerstone of our justice system, ensuring transparency and reaffirming public faith in the judiciary. The Open Court Principle mandates that unless otherwise permitted or ordered, all court proceedings, including all material and information forming part of a court’s records, must remain open and available to the public, including the free press. It forms part of our constitutional right of freedom of expression guaranteed by section 2(b) of the Canadian Charter of Rights and Freedoms.

Yet, when the private details of children's lives are at risk of being exposed, this principle must be weighed against their need for protection. Here, the law provides specific measures to guard these vulnerable individuals, though it's important to remember that these protections are not handed out for mere discomfort—they are reserved for cases where the stakes are irreversibly high.

  1. Initialization (redaction orders): This order allows for the removal or replacement of specific names with initials in court documents, judgments, or other publicly accessible records.
  2. Publication Ban: Publication bans, also known as media bans or reporting bans, are legal orders issued by a court to restrict or prohibit the publication or dissemination of certain information related to a legal case.
  3. Exclusion of the Public: Exclusion of the public refers to the practice of closing certain court proceedings or parts of court proceedings to the general public or specific individuals. It is done for various reasons, primarily to protect sensitive information, ensure a fair trial, safeguard the privacy and well-being of individuals involved, or address other compelling concerns.
  4. Sealing Orders: Sealing Orders are legal directives issued by a court to restrict public access to specific court records or documents.

The High Bar for Privacy: The Legal Test

In the landmark case of Sherman Estate v. Donovan, the Supreme Court of Canada set out the stringent criteria for these privacy measures:

  1. A clear and significant risk to an identified public interest must be established.
  2. The order must be necessary to prevent this risk, with no reasonable alternative in sight.
  3. The benefits of the order must decisively outweigh its negative implications.

In Practice: The Protection of Children

Children, by virtue of their age and development, are granted special consideration. Specifically, there is an important public interest in protecting a child from the serious risk of emotional and/or psychological harm. The privacy interests of children are also of particular concern for the courts. Since children have not voluntarily chosen to risk having their personal information publicly aired through the court process, they are not typically before the court to protect their personal information from scrutiny, and thus they are particularly vulnerable.

African man putting helmet on cute boy at the park. Father puts his son a protective helmet for riding bike.

The young age of the children renders them particularly vulnerable and susceptible to harm from the public disclosure of their private and sensitive information, and the protection of their privacy is therefore particularly important. The courts have emphasized in case law that initialization can be a minimal intrusion upon the Open Court Principle.

Final Thoughts: The Protective Path Forward

As a parent involved in high-conflict litigation, it's crucial to ask your lawyer about these protective options. Your children's private lives and dignity might be safeguarded through these judicial measures, particularly when allegations of family violence are on the table.

Remember, the wheels of justice can turn slowly, and high-conflict litigation can stretch on for years. In this prolonged pursuit of justice, make sure to explore protective measures available to shield your children from high conflict litigation.