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