Variation of spousal and child support on the ground evidence not available does not apply where evidence available but not disclosed

Gray v. Rizzi, 2016 ONCA 152:

[35]       In this case, the trial judge relied on ss. 37(2) and 37(2.1) of the Family Law Act, R.S.O. 1990, c. F.3, which authorize the variation of spousal and child support orders not only where there is a material change in circumstances, but also on the ground that "evidence not available on the previous hearing has become available…" In her view, "[t]here seems to be no good reason why there should be different tests for varying support under the FLA as opposed to the Divorce Act": para. 23.  

[36]       Whether that should be so or not, the fact remains that the statutes do contain different tests.  Section 17 of the Divorce Act does not recognize, as a ground for a variation, that evidence not available prior to the making of a final order later becomes available.  Furthermore, while it is not necessary on this appeal to interpret ss. 37(2) and 37(2.1) of the Family Law Act, I have great difficulty in conceiving that "evidence not available on the previous hearing" could include financial information that was "not available" because of a party's deliberate failure to meet his disclosure obligations.

[37]       The trial judge therefore erred in accepting that a motion to change is available to a payor on the basis of financial information that is new to the court because the payor had failed to meet his prior disclosure obligations.

Of the Law Societies of Upper Canada and Nunavut