Introduction - A request to seek a former spouse's income record was denied

Ms. Moshinsky-Helm (the Appellant) divorced her husband and made a request under the Access to Information Act (ATIA) to seek records relating to her ex-spouse's income and businesses. Any Canadian citizen, permanent resident or any person or corporation residing in Canada has the right to request access to records of government institutions that are subject to the ATIA by filing an Access to Information and Privacy (ATIP) request. The Canada Revenue Agency (CRA) denied this request because the application was made without the former spouse's consent and none of the exceptions in the Income Tax Act would apply to the Appellant. After the Appellant applied for judicial review, the Federal Court found the CRA was correct in denying the request from the Appellant.

The Appellant applied for judicial review of the CRA decision to deny information

The Appellant first sent the CRA an access to information request in July 2018 which she sought her former spouse's income amount in order to continue her litigation in family court. She provided the social insurance number without authorization from her ex-husband. One month later, the CRA determined the request was abandoned because it still lacked authorization from her ex-spouse. The Appellant then challenged the decision by filing a complaint to the office of the Information Commissioner of Canada (OIC). After communicating with the OIC, the CRA upheld its original decision. The Appellant then applied for judicial review of the CRA decision to the Federal Court. After the Canadian tax litigation lawyer for the OIC reported that the CRA was indeed in compliance with the ATIA, the Appellant brought a motion to the Federal Court.

The Appellant's request did not fall under any exceptions to grant information access without consent

The Federal Court first decided the presumption of reasonableness review should not apply because the legislature from the Access to Information Act and the Income Tax Act clearly indicated a different standard should apply. The Federal Court then reviewed the general prohibition listed in the Income Tax Act on providing taxpayer information to others, who are not the taxpayer, without their consent. The court then examined the exceptions raised by the Appellant. The first exception raised by the Appellant was family income, but the court found that there was no such exception listed in either the Income Tax Act or the Access to Information Act. In fact, even spouses who are still married have no right to obtain information of the other spouse without their consent. The Appellant then raised the Canadian Charter of Rights and Freedoms in a general way and argued that her case was about a violation of equality rights under s.15 of the Charter because the CRA's decision had an adverse impact on her and her child's life. The court found the reference to the Charter was vague and had no impact on the CRA's decision to deny her request.

Takeaway - An ATIP request for records requires consent

Although the records sought by the Appellant may be relevant to her family court litigation, she did not meet the exceptions under the Income Tax Act or the Access to Information Act. Unfortunately, the court also ordered the Appellant to pay the cost of $1,000 to the CRA. Therefore, it is highly recommended for a taxpayer seeking judicial review to first discuss with an experienced Canadian tax litigation lawyer so that he or she has a proper evaluation of the merits of the application.

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