Court File and Parties

Cowie v. Cowie, CITATION: 2021 ONSC 8120

COURT FILE NO.: 377/14

DATE: 2021-12-09

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Keith Douglas Cowie, Applicant

AND: Alisa Ann Cowie, Respondent

BEFORE: Mr Justice Ramsay

COUNSEL: Applicant self-represented; Angelo Fazari for the Respondent; François Paltrinieri (written submissions) for the non-party Canada Border Services Agency

HEARD: December 9, 2021 at Welland

Endorsement

[1] The parties divorced in 2016 after four years of marriage. They have a son, Konnor Keith Cowie, who was born on December 12, 2012.

[2] Since May 8, 2017, by order of Gregson J., neither party pays child support because they share custody and earn a similar income. Their child support obligations set each other off.

[3] The Applicant father of the child has brought a motion to change in form 15. He seeks child support on the basis that his income has gone down to the point that the set off now results in a payment to him.

[4] The Applicant worked for the Canada Border Services Agency until his resignation in February of 2018. Today the Respondent brings a motion seeking the following relief:

An order that Canadian Border Services provide a complete copy of the Applicant's employee file including but not limited to all disciplinary action, notes, records and the reason for his resignation of February 7, 2018 pursuant to Rule 19(11) of the Family Law Rules.

[5] The Applicant has produced a copy of his letter of resignation. He submits that the remaining contents of his file are not relevant to the proceedings.

[6] The custodian of the documents, Canada Border Services Agency, submits that while the court has jurisdiction to order production of the file, it should only order production of that part of the file that is relevant to the proceedings. Mr Paltrinieri concedes that Rule 19 and section 8 of the Privacy Act, R.S.C. 1985, c.P-21, permit disclosure in compliance with a court order. He says:

However, both the Family Law Rules and the Privacy Act highlight that this request for disclosure is subject to discretion, as neither statute is prescriptive … Further, the Privacy Act has quasi-constitutional status. As such, the exemption listed at ss. 8(2)(c) should not be liberally construed, and personal information, which has no apparent relevance to the issues before this Court should not be readily disclosed. The Court should consider alternatives to full disclosure in order to strike a balance between the need for disclosure and the right to privacy (see Canada (Minister of Public Safety and Emergency Preparedness) v Kahlon, 2005 FC 1000, [2006] 3 FCR 493).

[7] I accept this submission as correct in law.

[8] While the Applicant’s employment file does not contain privileged material, it could well contain material that gives rise to legitimate privacy and security concerns. I think, however, that the Respondent’s motion can be decided on the basis of relevance.

[9] The evidence on the motion suggests that the Applicant was earning $85,000 a year at the CBSA. He resigned and took a job in Mississauga. In 2020 he earned $68,000. He has the prospect of increased salary with time.

[10] The Respondent deposes that she has information that the Applicant resigned rather than be terminated for cause. If that is so, his change of job was not really voluntary. It would not support an argument that he is deliberately underemployed.

[11] The Respondent will have to explain at trial why he left an $85,000 job in Niagara for a $68,000 job and increased commuting costs in Mississauga. I do not think, however, that the explanation will be found in his employment file at the CBSA.

[12] The motion is dismissed without costs.

J.A. Ramsay J.

Date: 2021-12-09