The Court of Appeal’s decision in Kirby v. Woods provides timely clarification on the importance of anonymizing family law proceedings involving sensitive circumstances— particularly where young children are at the centre of allegations of abuse, violence, or other harms. The case underscores the judiciary’s responsibility to balance two foundational principles: the open court principle and the need to protect vulnerable children from unnecessary exposure and potential harm. It also offers an innovative solution to practitioner’s complaints that anonymizing must mean initializing.

In Kirby v. Woods, 2025 ONCA 437, the Court of Appeal was asked to determine the scope of confidentiality protections in a case involving a young child who had already been granted refugee status and who was the subject of highly sensitive cross-border parenting litigation. The Court emphasized that, while transparency in the justice system is essential, it cannot come at the expense of a child’s safety, dignity, or long-term wellbeing.

The Supreme Court’s decision in Sherman Estate v. Donovan set out the test that must be met before limits are placed on court openness. A test that the court found was not met in that case, despite (or maybe because) of its salacious details. It was unclear that this truly signaled a growing reluctancy to limit court openness in general.

However, drawing on the Supreme Court’s guidance in R. v. Jarvis, the Court of Appeal reaffirmed that children’s privacy interests warrant heightened protection. The court confirmed that this heightened protection often exceeded what is required for adults in similar circumstances and passed the Sherman Estates test. This reflects a growing recognition that public dissemination of sensitive family details—especially allegations of violence or abuse—can cause lasting reputational, psychological, and personal harm to children, even when the information is anonymized only in part.

To safeguard these interests, the Court of Appeal ordered robust measures, including:

• Full anonymization of the names of the parties, the child, and all family members.
• A comprehensive publication ban on information that could identify the child or the parents.
• Sealing of all materials created under the Immigration and Refugee Protection Act.
• Controlled access to the remaining court file, requiring notice to the parties under Rule 1.3 of the Family Law Rules.

These steps demonstrate how the courts can uphold the open court principle—by ensuring proceedings remain accessible, transparent, and reviewable—while still protecting the vulnerable individuals involved. The public can continue to understand judicial reasoning, follow legal developments, and scrutinize the court’s work, but without exposing children and families to the risks associated with identification.

In fact, Kirby v. Woods has now been relief on to overturn a motion judge’s dismissal of a sealing order in a parenting case. In B. v. G., 2025 ONSC 6347, the appeal court cited Kirby v. Woods as authority on the importance of children’s privacy, and alternative protective measures that can be used to protect this in family law matters. The appeal court found it to be an error in law that the motion judge then failed to consider alternate protective measures. They could have, and should have, been considered and applied.

Ultimately, Kirby v. Woods illustrates a crucial takeaway for family law practitioners: in cases involving young children and sensitive allegations, anonymization is not merely permissible, it is often essential. It preserves the integrity of the justice system while honouring our collective responsibility to protect children from compounding harm during already challenging circumstances.

Below we provide some practical tips for you to consider on how to proactively address the protection of children’s identities while respecting the open court principle:

1. Consider Anonymization Early
   • Proactively raise anonymization with opposing counsel in cases involving:
     • Young children
     • Allegations of abuse, neglect, or family violence
     • Mental health information
     • Immigration/refugee matters
2. Seek Tailored Publication Bans When Necessary
   • Considering requesting a ban that prohibits publication of any information that could identify the child or parents.
   • Tailor the scope to the case (e.g., banning reference to school names, towns, workplaces).
   • Cite Kirby v. Woods to support the need for enhanced child privacy protections.
   • Consider the wording of s. 87 of the Children and Youth Family Services Act, which deals with orders excluding media representatives or prohibiting publication and, as well, prohibitions on identifying children, and other relevant jurisprudence.
3. Identify When Sealing Orders Are Appropriate
   • Sealing orders may be warranted where the record includes:
     • Refugee/immigration materials (as in Kirby v. Woods) Issue 31 | December 2025 Page 3 of 4
     • Clinical assessments, medical documentation, or therapeutic records
     • Police reports or CAS files containing sensitive third-party information
   • Frame your request around necessity and minimal impairment: seal only what must be sealed.
4. Use Rule 1.3 Access Procedures Strategically
   • Remember that Rule 1.3 of the Family Law Rules provides a mechanism to manage access to the court file.
   • Request that access applications be made on notice to all parties, giving you the opportunity to respond.
   • This approach preserves openness while allowing for child-specific safeguards.
5. Draft Materials with Privacy in Mind
   1. Avoid unnecessary personal details in affidavits; include only what is relevant and proportional.
6. Prepare Clients for the Privacy Conversation
   • Explain to clients that family law cases form part of the public record unless protective orders are granted.
   • Manage expectations about what can and cannot be shielded.
7. Balance Transparency With Protection
   • Consider whether your position on protecting privacy undermines the open court principle and be prepared to address that.
   • The goal is to allow the public to access the court’s reasoning without exposing children to harm.
8. Use Case Law to Support Requests
   • When seeking anonymization, publication bans, or sealing orders, make sure you have reviewed the relevant caselaw. Beyond the cases already mentioned (R. v. Jarvis, Sherman Estate v. Donovan, Kirby v. Woods, and B. v. G.) we recommend:
     • M.A.B. v. M.G.C., 2022 ONSC 7207, and J.T. v. E.J., 2022 ONSC 4956: two detailed and thorough reviews of these issues both by Justice Chappell.
     • A. v. B., 2025 ONCA 358: a helpful reminder that sealing orders (and by extension anonymization orders) are generally interlocutory.
9. Be Proactive with Parenting Professionals and Assessors
   • Request that reports use initials or pseudonyms if appropriate, or for example, on consent.
   • Ensure assessors understand that their materials may enter the public record.
   • Review draft reports and flag identifying details that need to be addressed. Issue 31 | December 2025 Page 4 of 4
10. Document Your Reasoning
    • When seeking privacy protections, always create a clear record of:
      • The risks to the child
      • The sensitive nature of allegations
      • The minimal impairment of openness
      • The proportionality of the requested order

By: Golnaz Sara Simaei, AFCC-O Co-President and Eric Sadvari, AFCC-O Walsh Moot & Negotiation Competition Committee