One of the things people in court frequently forget is that everything filed and said in court, as well as all of the judge’s decisions, are public record. Anyone can walk into a court in Ontario (except for child protection proceedings or where there is a specific order) and sit and listen to the proceedings or go to the counter, get a court file and read all of its contents. People don’t even have to go to the court to read the judge’s decisions as many of them are posted on the court’s websites or on CanLii. What happens in court is very public and it is out of the control of the parties to a proceeding. People who want to control their image may want to choose to resolve their disputes in mediation, arbitration, or collaborative practice, which are all private (unless one of the parties appeals the result to a court).
There are an abundance of examples where the public nature of the court has come back to haunt people who went to Family Court. One recent example is that of a person who submitted a application in the United States. The people considering that application did an internet search and found a court decision in relation to the applicant. Unfortunately, the judge who heard the matter, and made the decisions, believed that the applicant had deliberately deceived the court and otherwise behaved badly. Those decisions hurt the applicant badly, again. The applicant wanted the court decisions removed from the internet, but court decisions are public documents and the public is entitled to access them.
Another example relates to a contractor who had not been completely honest in reporting his income (much of it cash) to the Canada Revenue Agency. The opposing party’s lawyer, John Schuman, had done an effective investigation of that contractor’s bank accounts and found that the spending did not match the reported income. The contractor made the mistake of denying the obvious and forcing a motion in court on the issue of support. That motion required a detailed calculation of the contractor’s bank accounts and spending be filed with the court. The contractor lost the motion. But worse, the CRA had developed an interest in the contractor’s true income. An agent went to the court, looked at the court file, and used the information in it to go after the contractor for tax evasion. Apparently, it is not uncommon for the CRA to check the contents of court files.
It is important to consider the consequences of going to court. The parties cannot control whether the judge will like them. A bad, publicly available decision, can impugn a parties character for a long time. Courts can also be a very bad place for people whose financial records are not the best as the opposing lawyer, or the judge, may highlight those problems and make the taxman’s job easy. These are good reasons for parties to consider alternative dispute resolution to keep their personal lives and finances private.