Canada, Divorce, and Anonymity: The Toronto Star Reports on the Privacy Divorce Debate

By Keith Edmund White, Editor-in-Chief

 

Is the Scarlet Letter alive and well when it comes to divorce?  The Toronto Star reports on whether Ontario should follow Quebec’s practice of only using initials when referring to parties in divorce proceedings.  Is this sensible privacy protection, or a lamentable proposal to erode judicial transparency?  With help from Fareen Jamal, CUSLI-Nexus explores Canada’s legal pluralism when it comes to a balancing privacy and transparency in divorce proceedings.  

In Sunday’s Toronto Star (and CBC.com), Allison Jones reports on whether “the rest of [Canada] should follow Quebec’s model of only referring to parties in family law decisions by their initials.”

A pillar of open court systems is that court records are public.  Why is this so important?  Well, first, it ensures that developments in the law can be followed by the public.  Second, it keeps the courts accountable.  While a thoroughly undemocratic institution, court records do keep the judicial system from running amok:  since any wrong move will be seen by the general public, and—perhaps more importantly—by the legislators who have the power to reshape the court system.

But, as any first-year law student can tell you (or avid ‘Law and Order’ watcher), there are times where privacy trumps transparency.  Two obvious examples:  sexual assault and crimes perpetrated by minors.  But how should privacy and judicial transparency be weighed when it comes to the sensitive and, perhaps, special case of divorce proceedings?

Using the initials of parties, instead of full names, can protect individuals from having their neighbors going on search engines and reading the sultry—and perhaps embarrassing and baseless—accusations and admissions that sometimes come about during divorce proceedings.  And privacy protection may be more at play since these proceedings may have a special impact on the litigants’ children, who might be suffering the collateral damage of divorce litigation.

Right now, in Ontario, the decision of whether to grant anonymity to parties in divorce litigation is up to the judge.  And even if the judge grants anonymity, the order can—according to Jones’ report—include “a recitation of the allegations each side has made against the other.”  Two natural outcomes appear to flow from this approach to divorce proceeding anonymity:  (1) a lack of institutionalized consistency when it comes to what parties are given anonymity, and (2) a privacy shield that likely doesn’t go far enough for some divorce litigants.

Fareen Jamal, a family law attorney in Ontario, adds some substance to this topic in a 2011 Ontario bar association article.  Boiled down—with some interwoven thoughts of my own—the article adds three issues to the mix:

(1)     Why keep a 21^st century ‘Scarlet Letter’?  Jamal argues that the naming process in divorce, historically, was used to shame the ignominious party.  Or, as he puts it, is “a vestige of the fault-era that should be eliminated.”  (OK...but is this really a factor's in 21st century divorces?)

(2)    Due process/fair trials concerns are fundamentally different in divorce cases.  Jamal argues that divorce cases are a ‘special’ category of litigation not needing the due process protections that judicial transparency ordinarily is relied on to give litigants.  Result:  if publishing the names of divorce litigants in court records does not help litigants in any way, why keep it?  So, how is divorce  ‘special’?  Jamal has three reasons:  

a.       divorce is not a crime anymore—so why identify parties like courts do for crimes?;

b.      lives aren’t on the line—divorce cases don’t result in people going to jail; result:  the need to protect parties from not receiving due process and keeping the vigilant eye of the public on crazy courts seem less needed here than, say, a murder case or multi-million civil case; and

c.       there’s no impact on costs to the judicial system—in law review speak, there’s no need to fret over ‘conservation over limited judicial resources’ because there’s no cost to changing the parties names to initials.  (To be fair, Jamal doesn’t give a fair shake to this argument.  Why?  In contentious divorces, dueling spouses don’t have to go to court, there’s always arbitration.  Interesting thought question:  If the publicity aspect of divorce litigation is removed, would that incentivize more or less cases to shift from judicial to arbitral settings?)  

(3)    Identity theft concerns.  Ontario divorce litigation forces parties to publicly release financial information—through mandatory financial disclosure forms—that is ordinary private—and can be the first tool used by savvy financial swindlers.  (This is a concern that has been seen in the United States as well—but is this more actual concern of identity theft, or simply an aspect of making it harder for neighbors to see your financials?)

So will Ontario and the rest of Canada follow Quebec’s lead?  There doesn’t yet seem to be a groundswell of support for a change.  But in the age of online court records, I wouldn’t be surprised if this gets more attention in the near future.  Though, in the era of overexposure (read:  iPad, Google, and Facebook) is privacy, not the purported shaming aspect of divorce, the true relic of the 21^st century?  

Like this post?  Be sure to check out Justin McNeil's related post on Ontario's new privacy tort.