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If Kids Aren’t Part of the Litigation, Should Their Best Interests Still be Considered?

kid in courtroom

If Kids Aren’t Part of the Litigation, Should Their Best Interests Still be Considered?

In a prior blog post  we discussed a case called M. v. C., which dealt with whether a father who is estranged from his child should nonetheless be required to pay for the child’s private school fees. (And in that case, quite unusually, the court application had been brought by the 14-year-old child herself).

One of the important details in that case was the fact that the father had had no involvement in the daughter’s life or that of her mother at all, and in fact had gone on to marry and have three other daughters. Those daughters did not know of the existence of the 14-year-old, who technically was their half-sister.

In the context of the father’s request to have the court file sealed for privacy, the court had to consider whether the best interests of the father’s other, younger children – who were part of his new family but were not involved in the lawsuit – should even be considered. In particular, it reflected on the potential impact it may have on those children to learn for the first time about their 14-year-old half-sister and about the details of the lawsuit. In this regard the court took note of evidence that the girl had already made some reference to the litigation online; this meant that the children’s peers might learn of the case as well, which the court speculated could lead to bullying via computer.

While recognizing that the overriding principles and values of the Canadian justice system favoured openness and transparency, the court pointed out that this goal must be balanced against the interests of children who are potentially affected by the litigation – including even those who were not formally part of it. As the court put it:

“It makes no sense to me that the Court would only be concerned with the possibility of negative consequences arising from litigation in the context of children who are parties to a lawsuit and would ignore the possibility of harm being visited upon other children who are directly affected by the litigation yet are not parties to it. The preferable view is for the court to take into account the interests of children who clearly can suffer harm arising directly from a lawsuit which involves one or more of their parents, even if the children themselves are not named in the lawsuit.”

In the end, having concluded that the best interests of the father’s new family should also be taken into account, the court ordered the file sealed for privacy.

For the full text of the decision, see

M. v. C., 2014 ONSC 567 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.