Further Information on
Family Law Practice Note 10
Why did the Court change the terms of access to family court files for members of the public?
Family law litigation has undergone many changes in the past few years. One of them is an increase in disclosure requirements that requires the information be filed in the court file rather than just stated in Court. The Court and members of the Bar were becoming increasingly concerned about the extent of public access to sensitive personal financial information in family law files, in particular by curious onlookers and by other family members. Some parents make statements in their affidavits which would be very harmful for their children to learn about.
As a result, sealing orders were being used more often to protect the information from children involved in the family whose matter was in Court. In addition, family court files contain social insurance numbers, tax returns, bank and credit card information, financial statements and general ledgers for privately held corporations, and other highly personal information. There was a push by members of the Bar who were concerned about the potential for intrusion into the privacy of their clients. The easily accessible personal information could be distributed using social media, leaving the parties vulnerable to identity theft.
Who initiated the process in the Family Law Practice Note 10?
The Practice Note took two years to prepare. It was discussed by the Court as a whole at its Annual Meeting, and was prepared by the Court’s Family Law Committee, a committee comprised of a number of judges with extensive experience in this area.
What process did the Court use to determine the changes in access?
We conducted a jurisdictional scan across Canada to see how other Courts were protecting children and personal information inherent to family law files. We modeled ourselves on the process in the Nova Scotia Supreme Court, but broadened access further to include access for media and government employees acting in the course of their employment in respect of the specific file. We consulted with Alberta Justice and completed our own internal research on the constitutionality of the proposed Practice Note 10 and we also consulted with some members of the media through their lawyer. We also consulted with the Family Law Bar.
Family Practice Note 10 sets out the procedure for a person who is not one of the following: a party to the action, a lawyer of record for a party or for the child or children of a party, a government employee acting in the course of employment pertaining to the file, a person who is authorized by filing the form “Authority to Access Family Law File”, or an accredited member of the media.
These persons must file a “Request to Access Family Law File” form and serve the parties to the action and all lawyers of record on the file. A party or child of a party who wishes to prevent access to the file must bring a Restricted Court Access Application and give notice to the person requesting access as well as to the media within 30 days of service of the Request.
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