By Kayleigh Pink, Associate Research Lawyer,
Lam Family Law*

Family law inherently involves personal, and often intimate and sensitive, information about individuals, families, and children. Despite the personal nature of family law cases, the open court principle nevertheless applies. As such, a party involved in a family law dispute who seeks a restriction on the court file must go beyond asserting that the matter is private or involves children – they must engage with the test to limit court openness and justify why the type of restriction is necessary.

This blog post reviews the test for a discretionary order restricting court openness, the governing legislation and Ontario’s provincial practice direction, and the different types of orders that restrict court openness, including a novel anonymization order recently ordered by the Court of Appeal for Ontario.

Test to Restrict Court Openness

The open court principle ensures that court proceedings and records are generally accessible to the public and media. This principle is constitutionally protected as part of the right to freedom of expression and is seen as a core feature of a liberal democracy: Sherman Estate v. Donovan, 2021 SCC 25 (CanLII), at para 1.

While there is a “strong presumption” in favour of open courts, there are also “exceptional circumstances” that may justify restricting this openness: Sherman Estate v. Donovan, ibid, at paras 2-3.

The party seeking a discretionary order (i.e., one that is not automatic or mandatory by virtue of statute) to limit the open court principle must establish that:

  • 1. court openness poses a serious risk to an important public interest;
  • 2. the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and,
  • 3. as a matter of proportionality, the benefits of the order outweigh its negative effects: Sherman Estate v. Donovan, ibid, at para 38.

There is not a “closed list” of what qualifies as an important public interest, but the Supreme Court of Canada (“SCC”) has recognized privacy and, by virtue of said privacy, the “preservation of dignity”, as an important public interest. The risk to privacy will only be serious where the information is sufficiently sensitive such that openness would “meaningfully strike at the individual’s biographical core in a manner that threatens their integrity”. The SCC has also confirmed that a risk to physical safety is an important public interest: Sherman Estate v. Donovan, ibid, at paras 42 & 85-86.

In family law proceedings, restrictions are often sought based on children being involved. The “mere fact” that information about a child is part of a case does not displace the test. However, the court should consider the increased vulnerability of children in determining whether openness would result in an “affront to their sense of dignity and integrity”: J.T. v. E.J., 2022 ONSC 4956 (CanLII), at para 23, citing Sherman Estate v. Donovan, ibid, at para 92.

Further, the court has an obligation to ensure that a child’s physical and emotional safety is not compromised for the sake of protecting the open court principle: A.B. v. C.D., 2022 ONSC 2134 (CanLII), at para 35.

Legislation and Provincial Practice Direction

Ontario courts have several legislative tools to restrict openness in family law proceedings. The three-part test set out by the SCC in Sherman Estate applies regardless of which legislative provision a case falls under: J.T. v. E.J., 2022 ONSC 4956 (CanLII), at para 26.

In civil cases, including family cases, an order restricting the open court principle may be made under ss. 135(2) (an order excluding the public from a hearing) or 137(2) (sealing order) of the Courts of Justice Act, RSO 1990, c C.43.

For cases involving an application under Part III (decision-making responsibility, parenting time, contact, and guardianship) of the Children’s Law Reform Act, RSO 1990, c C.12 (“CLRA”), an order restricting the open court principle may be made under s. 70 of the CLRA.

More recently, in 2023, r. 1.3 was added to the Family Law Rules, O Reg 114/99. This rule gives the court the authority to make a “restricted access order”, which is an order that access to all or part of a court file be limited or that any portion of it be redacted before being provided to a person, including an order under s. 137(2) of the Courts of Justice Act or s. 70(1)(a) of the CLRA. A restricted access order may be made with respect to the following:

  1. A case involving a claim respecting decision-making responsibility, parenting time or contact with respect to a child under the Divorce Act (Canada) or Part III of the Children’s Law Reform Act.
  2. A case involving an order under Part I [Parentage] of the Children’s Law Reform Act.
  3. An international child abduction case. O. Reg. 590/22, s. 1.

For cases before the Ontario Superior Court of Justice, a party seeking a discretionary order limiting the open court principle is typically required to provide notice to the press under the Consolidated Provincial Practice Direction for Family Proceedings, Part H(2.).

However, the court retains discretion to determine whether notice to the press is required, and if so, the timing of such notice: J.T. v. E.J., 2022 ONSC 4956 (CanLII), at paras 35-36.

Different Types of Orders that Restrict Court Openness

There are different types of orders the court may make to restrict court openness, including “a complete or partial sealing order, temporary or permanent publication ban, initialization, redaction of identifying information, anonymization, or some combination thereof.”: Kirby v. Woods, 2025 ONCA 437 (CanLII), at para 22.

These orders restrict the open court principle to varying degrees. Keeping the second stage of the test in mind, the order sought should be only what is needed to prevent the risk to the important public interest at stake. If there are other measures that impinge less on openness and can just as effectively protect the interest engaged, the proposed restriction is unjustified: J.T. v. E.J., 2022 ONSC 4956 (CanLII), at para 18, citing various cases.

For example, a sealing order is an “extreme measure”. A party seeking a sealing order should, at a bare minimum, be prepared to address issues of “(i) notice to the media and whether it should be dispensed with if not given (and why), and (ii) why reasonably alternative measures (such as using initials for the parties and the children in all publicly-accessible documents in the court file and/or a publication ban) are insufficient in the circumstances.”: N.N. v. R.N., 2021 ONSC 7108 (CanLII), at para 9.

On the other hand, “[i]nitialization is seen as a minimal intrusion upon the open court principle.”: V.R. v. S.R., 2024 ONCJ 262 (CanLII), at para 6.

Initialization or anonymization does “not prevent the media from being present at the hearing and reporting on the facts of the case and the conduct of the trial”. In other words, the press “retains the ability to inform the public, with minimal impact on the public’s access to information”: Kirby v. Woods, 2025 ONCA 437 (CanLII), at para 23.

Thus, in family law cases, especially those involving children, “requested anonymization or initialization orders are frequently granted. Sealing orders are only exceptionally granted.”: Kirby v. Woods, ibid, at footnote 3. For examples of family law cases where partial sealing orders were appropriate, see: M.A.B. v. M.G.C., 2022 ONSC 7207 (CanLII), at paras 44-45 & S.E.L. v. O.V.P., 2022 ONSC 1390 (CanLII), at paras 74-76 & 81.

Initialization

While initialization is common in family law cases, particularly cases involving children, Justice Chappel noted in J.T. v. E.J. (2022) that judges must “always provide reasons for initializing names in Reasons for Judgment, having regard for the open courts principle.” To permit courts to deviate from the open court principle without providing reasons for doing so “runs a serious risk that the principle will be eroded over time, with a corresponding risk to our democracy and the constitutional right to freedom of expression.”: J.T. v. E.J., 2022 ONSC 4956 (CanLII), at paras 4 & 9.

In that case, Justice Chappel initialized the names of the parties, the child, and the names of all other individuals other than professionals in the Reasons for Judgement. Initialization was appropriate because the Reasons for Judgment included “highly sensitive information about the child”, including her sexual identity and the significant challenges she had experienced since revealing her sexual identity and family history, and “highly personal information” about communications between the child and mother. This child was “highly vulnerable”, having regard for the psychological and other challenges that she had experienced in her life: J.T. v. E.J., ibid, at para 38.

For other family law cases where an initialization order was made, see Churchill v. Elliott, 2025 ONSC 702 (CanLII), at paras 51-52 [children’s names initialized] & A.B. v. C.D., 2022 ONSC 2134 (CanLII), at para 38 [children’s and parties’ names initialized].

Anonymization

While initialization is a common way to anonymize a decision, it is not the only way. In the recent case of Kirby v. Woods (2025), Justice Madsen anonymized the case by using an “online random last name generator” for the title of proceedings and using “Parent 1” and “Parent 2” to refer to the parties in the decision. Using an online generator allowed the case to be anonymized for the protection of the child, while remaining memorable for purposes of precedent: Kirby v. Woods, 2025 ONCA 437 (CanLII), at footnote 1.

In Kirby v. Woods, Parent 1 appealed an order requiring the return of the child to her habitual residence under the Hague Convention on the Civil Aspects of International Child Abduction, despite the Immigration and Refugee Board of Canada granting the child refugee status. Confidentiality orders were not sought at the court below, but Parent 1 brought a motion for restrictions on access to the appeal court file. Parent 2 opposed the motion, except for an order initializing the file and a non-publication order for information that would have the effect of identifying the child. Justice Madsen anonymized the decision, made a non-publication ban on information that would have the effect of identifying the parties or the child, a sealing order for any document in the court record created pursuant to the Immigration and Refugee Protection Act, and an order that any request for access to the remaining unsealed court record be made on notice to the parties: Kirby v. Woods, ibid, at paras 1-3 & 30.

*with thanks to Vanessa Lam for her suggestions and edits.