Kirby v. Woods: Confidentiality Orders in Family Law

Introduction

The Ontario Court of Appeal’s recent endorsement in Kirby v. Woods, 2025 ONCA 437, provides timely guidance on confidentiality measures in family proceedings involving children. Decided by Madsen J.A. on June 12, 2025, the motion addressed how courts should balance the open court principle with the protection of vulnerable children and the statutory confidentiality of refugee determinations.

Importantly, the decision arose not from the merits of the Hague Convention appeal, but from a motion seeking restrictions on access and publication while the appeal was pending.

Background and Procedural Context

The underlying litigation involved an appeal of a Superior Court order directing the return of a child to their habitual residence under the Hague Convention on the Civil Aspects of International Child Abduction. The trial judge had found wrongful retention in Canada and held that the “serious risk of harm” exception did not apply. Prior to that decision, the Immigration and Refugee Board of Canada (IRB) granted the child refugee status.

In the appeal, Parent 1 brought a motion for confidentiality orders, seeking:

• Initialization/anonymization of the case
• A prohibition on publishing identifying information
• Sealing of documents created under the Immigration and Refugee Protection Act (IRPA), including the IRB decision

The Office of the Children’s Lawyer (OCL) supported these measures. Parent 2 opposed all but initialization and the non-publication of the child’s identity. No confidentiality orders had been sought at first instance. Notice was given to the media, but no journalists appeared.

Legal Framework: Sherman Estate in Family Law Context

The Three-Part Test

Madsen J.A. applied the Supreme Court of Canada’s framework from Sherman Estate v. Donovan, 2021 SCC 25, which requires:

1. Serious Risk to an Important Public Interest: Court openness must create a serious risk to an identified public interest.
2. Necessity: The order sought must be necessary because no reasonably available alternative would prevent the risk.
3. Proportionality: The benefits of the proposed order must outweigh its negative effects on openness.

Ontario’s Legislative Overlay

The Court emphasized that Sherman Estate does not supersede s. 70 of the Children’s Law Reform Act* but rather informs the exercise of discretion under that provision. Other provisions, such as s. 137(2) of the Courts of Justice Act* and r. 1.3 of the Family Law Rules*, provide additional authority for confidentiality measures but were not expressly tied to Sherman Estate in this decision.

* Children’s Law Reform Act, s.70 – requires courts to consider limiting access to files in parenting cases.

* Courts of Justice Act, s.137(2) – permits sealing documents.

* Family Law Rules, r.1.3 – governs notice when non-parties seek access to files involving children.

Children’s Privacy as an Important Public Interest

The Court reaffirmed the strong protection afforded to children’s privacy, drawing on:

• Sherman Estate, which recognized minors’ particular vulnerability to intrusions of privacy.
• A.B. v. Bragg Communications Inc., 2012 SCC 46, which emphasized that privacy protections are rooted in age, not temperament.
• Article 3.1 of the UN Convention on the Rights of the Child, which requires the best interests of children to be a primary consideration.

Here, the record contained allegations of violence between the parents and toward the child, as well as sensitive details of the child’s views and fears. The child expressly feared for her safety if identifiable information became public. This was enough to establish a serious risk to an important public interest.

The Spectrum of Confidentiality Orders

Read together, the Court’s reasons in Kirby v. Woods reflect a graduated approach to confidentiality measures. Different tools carry different impacts on the open court principle:

Initialization/Anonymization – as the Court noted, these orders prevent identification but still allow full media attendance and reporting, with only minimal impact on openness (para. 23).

Non-publication orders – go a step further by prohibiting publication of identifying details while still allowing the substance of the case to be reported.

Partial sealing – may be used to protect particularly sensitive records, such as IRB materials in this case (paras. 22, 29).

Complete sealing – described by the Court as an “exceptional measure” that significantly intrudes on openness and should be rarely ordered (para. 23).

This analysis confirms that courts will favour the least restrictive measures necessary, turning to sealing only where no other order can adequately protect the child’s privacy or safety.

How Kirby v. Woods Differs from Routine Family Law Cases

At first glance, the case might look similar to routine family matters where children’s names are replaced with initials. But there are key differences that make Kirby v. Woods a precedent worth noting:

• Procedural posture: No confidentiality orders were sought at first instance; the issue only arose at the appeal stage. That is unusual compared to the routine anonymization applied automatically in trial-level parenting cases.
• Refugee confidentiality overlay: Unlike otypical cases, this child had already been granted refugee status. Under IRPA s.166(c), refugee proceedings are confidential by law. The Court of Appeal’s sealing order for IRB documents reflected not just discretion, but statutory mandate.
• Broader restrictions: Instead of simple initials, the Court imposed anonymization using randomly generated names (“Kirby” and “Woods”), coupled with a non-publication order and sealing of IRB records. This layered approach went well beyond the norm.
• Application of Sherman Estate: Whereas routine anonymization rarely engages detailed proportionality analysis, here the Court explicitly applied Sherman Estate’s framework to balance openness, child safety, and statutory obligations.

Together, these features show that Kirby v. Woods is not just “another anonymized family case,” but a structured roadmap for when and how Ontario courts will impose layered confidentiality protections in complex cases, especially those touching on refugee law.

Special Considerations for Refugee Determinations

A key feature of this case was the child’s refugee status. Unlike discretionary limits on openness, statutory confidentiality attaches to refugee proceedings:

• IRPA, s.166(c) mandates that refugee proceedings be held in private.
• IRB Guideline #3 requires heightened protection for minors and emphasizes the primacy of the child’s best interests.

The Court didn’t have to decide whether to seal the IRB documents using the usual discretionary balancing test. Because federal law already makes refugee proceedings private, the Court’s sealing order was essentially just giving effect to Parliament’s mandatory confidentiality rule.

Orders Granted and Their Scope

The Court ordered:

1. Anonymization – using randomly generated names (“Kirby v. Woods”).
2. Non-publication order – prohibiting disclosure of identifying information.
3. Partial sealing – sealing all IRPA/IRB materials, with access limited to court, parties, counsel, and the OCL.
4. Access protocol – any further requests for access require notice, with redacted documents to be provided where necessary.
5. Costs – reserved to the panel hearing the appeal.

Practice Points for Family Lawyers

Strategic Considerations

• Raise confidentiality early – don’t wait until appeal to address privacy.
• Tailor narrowly – courts prefer proportionate restrictions over blanket sealing.
• Develop evidence – establish specific risks to the child’s privacy, safety, or dignity.
• Expect notice requirements – media and non-parties must be given an opportunity to respond.

Procedural Reminders

• Follow the Family Law Rules notice provisions.
• Seek consent to minimal measures (initialization, anonymization) where possible.
• Draft orders with clear access protocols.

Common Pitfalls

• Overbroad sealing requests.
• Skipping proportionality analysis.
• Failing to build a detailed evidentiary record.

Implications for Future Practice

Kirby v. Woods confirms that while anonymization of children’s names is routine in family cases, broader confidentiality measures such as non-publication orders or sealing are exceptional. Courts will only impose these more restrictive orders where there is evidence of real and demonstrated risks — as in this case, where refugee law imposed its own statutory confidentiality regime.

The decision illustrates how Ontario courts will:

• Apply Sherman Estate in tandem with s. 70 CLRA when considering confidentiality orders in parenting cases, while also drawing on other statutory provisions such as s. 137(2) CJA and the Family Law Rules as complementary sources of authority.
• Respect refugee law’s statutory confidentiality regime.
• Craft targeted, proportionate orders rather than broad sealing.

Conclusion

Kirby v. Woods offers a careful application—not expansion—of established principles. It reminds practitioners that while the open court principle remains fundamental, Ontario law provides meaningful tools to protect vulnerable children, especially where refugee determinations intersect with family litigation.

For practitioners, the case is a roadmap for proportionate, evidence-based confidentiality applications. Courts will scrutinize requests carefully but will not hesitate to impose restrictions when children’s safety, dignity, and privacy are at stake.

Let’s continue to elevate the practice of family law in Ontario!

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Disclaimer: The information provided in this blog post is intended for general informational purposes only and should not be considered as legal advice. Consult with a qualified family law attorney for advice regarding your specific situation. Goldhart Mediation & Arbitration is not responsible for any actions taken based on the information presented in this blog.