Miller v. Miller, 2019 NSSC 27

Supreme Court of Nova Scotia (FAMILY DIVISION) Citation: Miller v. Miller , 2019 NSSC 27 Date: 2019-01-23 Docket: 1206-7149 Registry: Sydney Between: Linda Margaret Miller Petitioner v. Mervyn “Dale” Miller Respondent Library Heading Judge: The Honourable Justice Robert Gregan Submissions: November 13, 2018 Written Decision:

Summary: January 23, 2019 A trial in this matter took place on May 3, 30, 31, and June 1, 2018. A written decision was issued on October 18, 2018. Upon receipt of the written decision, the Petitioner filed, pursuant to Rule 27.01(1), permission to make a motion by correspondence. In the motion the Petitioner seeks that initials be used in the publication of the written decision. The court has been advised that the Respondent consents to the motion and joins in the request that the initials only be used for publication purposes. Issues:

(1) Application of Rule 59.60

(2) Application of the Open Court Principle Result: Motion Dismissed THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET. Supreme Court of Nova Scotia

(FAMILY DIVISION) Citation: Miller v. Miller , 2019 NSSC 27 Date: 2019-01-23 Docket: 1206-7149 Registry: Sydney Between: Linda Margaret Miller Petitioner v. Mervyn “Dale” Miller Respondent DECISION [ Judge: The Honourable Justice Robert Gregan Submissions: November 13, 2018 Written Decision: Counsel: January 23, 2019 A ngela Walker and Mary Jane McGinty, for Linda Miller Damien Barry, for Mervyn “Dale” Miller By the Court: Background [ 1 ] A trial in this matter took place on May 3, 30, 31, and June 1, 2018.

A written decision was issued on October 18, 2018. [ 2 ] Upon receipt of the written decision, the Petitioner filed, pursuant to Rule 27.01(1), permission to make a motion by correspondence. In the motion the Petitioner seeks that initials be used in the publication of the written decision. [ 3 ] The court has been advised that the Respondent consents to the motion and joins in the request that the initials only be used for publication purposes. [ 4 ] This is my written decision on the motion. [ 5 ] The governing Rule is Rule 59.60, which states as follows: Publication ban and access to information 59.60

(1) A proceeding under this Rule 59 shall be held in public, except that a judge who is satisfied on either of the following may exclude members of the public from all or part of the proceeding: (

a) the presence of the public could cause emotional harm to a child who is a witness or a participant in the hearing, or is the subject of the hearing; (

b) it is in the interest of the proper administration of justice.

(2) A judge may make an order prohibiting the publication of the identity of a child, or the name of a party or witness, or of any other information that would identify the child.

(3) A judge may order that a court file or any part of the file or any document contained in the file be sealed, treated as confidential, and not made available to

the public.

(4) A person, other than a party or counsel for a party, who requests access to a court file must give written notice to the parties no less than twenty days before obtaining access.

(5) A party may make a motion for an order sealing all or part of the court file after delivery of written notice of the request for access.

(6) The person requesting access to the court file must be granted access, subject to any terms or conditions the judge specifies, unless a party makes a motion within the required time. [ 6 ] The Petitioner says that although there was no pretrial motion seeking to exclude the public, or to redact portions of the decision, that the court has discretion to do so post trial. [ 7 ] The Petitioner states that is raises concerns if full names are used in the reported decision. [ 8 ] These concerns can be listed as follows: • The parties reside in a small community. • Despite the children now being enrolled in university, protection of their identity as children of the marriage remains important. • The Petitioner says that detailed information of resources available to the children is a concern because: o Employers and others routinely do google searches prior to hiring employees. o That a public decision would result in the children’s names popping up at part of a google search. o The Petitioner also says that while it concedes, a diligent enquiry could still lead to the identity of the children, if initials are used, the use of initials would still provide some safe guards. [ 9 ] In support of the motion, the Petitioner relies upon a number of cases.

I will refer to these during my analysis. Analysis [ 10 ] Rule 59.60 begins with the statement that “A proceeding under this Rule 59 (family proceedings) shall be held in public , except that a judge who is satisfied on either of the following ….” [emphasis added]. [ 11 ] There is therefore, a presumption that hearings are to be open to the public unless certain exceptions apply. This has been referred to as the “open court principle”. [ 12 ] The leading case in Nova Scotia regarding this principle is Coltsfoot Publishing Ltd. v. Foster-Jacques , 2012 NSCA 83 .

There the trial judge put in place a sealing order relating to all aspects of a family file. [ 13 ] The court of appeal overturned the sealing order and put in its place, an order prohibiting publishers from disclosing personal identifier information. [ 14 ] In doing so, the court commented that there was no evidence presented in support of the motion [see paragraphs 6, 13, 27 and 38]. [ 15 ] Here, in support of the motion, absolutely no evidence was provided. [ 16 ] The Petitioner therefore falls well short of what is stated at paragraph 38 of Coltsfoot Publishing Ltd. v.

Foster-Jacques , supra: … Accordingly, I do not read Sierra Club and its progeny as altering either the formal standard of proof of the degree of scrutiny expected from a judge in her fact finding.

My reading of the authorities, such as Globe and Mail, is that the facts to support a confidentially order must be established by evidence (that is assessed on the balance of probabilities), not by paid assertions or unsworn generalizations, and those facts in turn must establish a real and substantial risk to an important public interest. [ 17 ] There is therefore, no evidence to support the claim that a written decision unredacted will result in harm to the parties or the children merely because they live in a small community. [ 18 ] Similarly, there is no evidence that as university aged children, a written unredacted decision will have an ill effects. [ 19 ] In the absence of evidence, I also reject that information on resources available for education purposes, will impact potential employment, or relationships with employers. [ 20 ] As well, while the amounts of the funds were made known in the decision, details of the funds or private identifying information was not provided.

[ 21 ] Therefore, there are not concerns of personal identifying information that were present in Coltsfoot Publishing Ltd. v. Foster- Jacques , supra, nor are third party seeking access to such information. [ 22 ] I will now review the case authority sited by the Petitioner. • A.N. v. J.S., 2018 NSSC 146 – This was a case involving as one of the issues, custody/parenting time of a 5 year old child.

While courts have consistently said that in these circumstances that it may not be in the best interest of the child or the public in later years to have available personal identifying access contained in a decision, such factors do not apply in this case, because (1) custody was not an issue; and (2) the children in the instant case are of university age. • B.B. v. K.B., 2018 NSSC 223 – This case involved parenting of an 8 year old child. Again, not helpful to the Petitioner’s argument in the instant case. • RMAF v.

PAM, 2018 NSSC 167 – While that case dealt with 20 and 23 year old children respectively, it is also distinguishable. One of the children (son) allegedly suffered from mental health and addiction issues as well as being suicidal. Clearly privacy concerns around those issues would be a live issue in any decision to publish identifying names.

These considerations do not apply in the present case [ 23 ] Finally, the “open court principle” must be weighed against the parties’ privacy interests. [ 24 ] Here, the parties participated in a judicial settlement conference and were represented by experienced counsel. [ 25 ] Both parties therefore would or ought to have been aware of the fact that one of the benefits of reaching settlement versus going to a hearing, is that hearings require decisions and the decisions are released to the public. [ 26 ] The parties would therefore be aware of the potential consequences of a decision being made public and despite this knowledge chose to proceed to a hearing in any event. [ 27 ] Finally, as pointed out in Coltsfoot Publishing Ltd. v.

Foster-Jacques , supra, the purpose of the “open court principle” [providing reasons/decisions] is not just to educate the public. Rather, its primary purpose stated and reiterated by the Supreme Court of Canada, is to “illuminate the avenue of accountability for the judicial system [ Coltsfoot Publishing Ltd. v. Foster-Jacques - par 85] . [ 28 ] I therefore dismiss the motion. The decision will be published as Miller v. Miller , and without the use of initials throughout. Gregan, J.