2010 ONSC 6981, 2010 ONSC 6981

CITATION : W.S. v. R.S, 2010 ONSC 6981 COURT FILE NO.: 348/10 DATE: December 15, 2010 SUPERIOR COURT OF JUSTICE - ONTARIO RE: W. S. Applicant - and - R. S. Respondent BEFORE: Honourable Madam Justice Trousdale COUNSEL: Brian W. Abrams, for the Applicant, W.S. Mark S. Lafrance, for the Respondent, R. S. MOTION HEARD: November 10, 2010 ENDORSEMENT ON MOTION [ 1 ] This is a motion by the Respondent requesting an Order that the file be sealed.

At the opening of the hearing of this motion, Counsel for the Respondent’s solicitor advised the Court that both parties consent to the file being sealed, subject to the approval of the Court. ISSUE [ 2 ] Even thought the parties have consented to an Order that the file be sealed, does the public interest in having Court files accessible to the public outweigh the interest of the parties in having the file sealed? BACKGROUND [ 3 ] The parties are husband and wife. They have been married just over 14 years.

The issues before the Court are child support, spousal support, exclusive possession of the matrimonial home and contents, freezing of assets and equalization of net family property. [ 4 ] The Respondent is part owner of a company involved in a trade in the construction industry. The Respondent’s evidence is that the industry is quite competitive both in Kingston and from companies located outside Kingston. He is concerned that financial productions he may make concerning his company may come to the attention of his competitors, to labour interests in the community, and to his suppliers.

The Respondent has filed a letter from the Executive Director of his provincial trade association regarding the

potential serious prejudice to the Respondent’s business interests if the financial information regarding his company were to be accessible to the public. ANALYSIS [ 5 ] Section 137(1) of the Courts of Justice Act, R.S.O. 1990, Chap. C.43 , provides that on payment of the prescribed fee, a person is entitled to see any document filed in a civil proceeding in a court, unless

an Act or an Order of the court provides otherwise. [ 6 ] Section 137(2) of the Courts of Justice Act , provides that a court may order that any document filed in a civil proceeding before it be treated as confidential, sealed and not form part of the public record. Accordingly, this Court has the jurisdiction to make the Order requested, pursuant to s.137(2) of the Courts of Justice Act. [ 7 ] Ordinarily, where both parties consent to an Order, it would likely be made.

However, in considering whether this Order should be granted, I need to consider whether the risk of harm to the Respondent and the Applicant outweighs the interests of the public that court proceedings be open and accessible. [ 8 ] I have previously granted a temporary Order on consent at the Case Conference held on October 5, 2010 which provided that the Applicant, her Counsel and any persons acting or otherwise retained on her behalf concerning issues arising in these proceedings are restrained from distributing or otherwise disseminating any information about the Respondent’s personal and/or corporate financial data as may be produced during the course of these proceedings, save and except as it may relate to the furtherance of issues within these proceedings. [ 9 ] This temporary Order is consistent with Rule 20(24) of the Family Law Rules which provides that when a party obtains evidence under Rule 20, Rule 13 (financial statements) or Rule 19 (document disclosure), the party and the party’s lawyer may use the evidence and any information obtained from it only for the purposes of the case in which the evidence was obtained, subject to the exceptions in Subrule 20 (25). [ 10 ] The fact that both parties have consented to the proposed Order is not, in my view, determinative of the issue.

If such were the case, all parties coming before the Court could consent to their file being sealed, which would be contrary to the interest of the public in having access to documents filed in civil proceedings. [ 11 ] The evidence before me is that if information and documentation regarding the financial strength and viability of the Respondent’s company and his personal financial situation were accessible to the public it could affect: (

a) labour negotiations by the Respondent’s company; (

b) the ability of other contractors to know the bonding capabilities of the Respondent’s company and as to what projects the Respondent’s company could bid on; (

c) The ability of the Respondent’s company to enforce timely payment; and (

d) negotiations with suppliers and manufacturers by the Respondent’s company to purchase required material and services. [ 12 ] I find on the evidence before me that it is in the best interests of both parties that the Respondent’s financial information not be available to the public, which includes his competitors, labour interests and suppliers.

I find that the financial well-being of the Respondent’s company, the parties and their children may be seriously prejudiced as a result of the disclosure of the Respondent’s financial information to persons who may use that information to the detriment of the Respondent’s company. [ 13 ] Even though the parties have consented to the whole file being sealed, I find, however, that the interest of the public in having court files accessible to the public outweighs the interests of the parties, except in relation to the financial statements of the parties and productions of financial information.

I find that the financial documentation of the parties should be sealed to prevent possible serious prejudice to the parties. I do not find it necessary on the evidence before me that the whole file should be sealed. [ 14 ] A temporary Order shall issue that all the Financial Statements of the parties and any financial productions by the parties, as well as the Respondent’s Notice of Motion dated November 4, 2010 and his supporting Affidavit dated November 4, 2010 shall be sealed.

The balance of the file shall not be sealed and shall remain accessible to the public. [ 15 ] Order to go accordingly. ___________________________ Trousdale, J. DATE: December 15, 2010 CITATION : W.S. v. R.S.2010 ONSC 6981

COURT FILE NO.: 348/10 DATE: December 15, 2010 SUPERIOR COURT OF JUSTICE - ONTARIO RE: W. S. Applicant - and - R. S. Respondent BEFORE: Honourable Madam Justice Trousdale COUNSEL: Brian W. Abrams, for the Applicant Mark Lafrance, for the Respondent ENDORSEMENT ON MOTION Trousdale, J. DATE: December 15, 2010