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 21st 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 21st
century?