Edmonton Sun

May 3, 2001

Court ruling puts divorce deals in doubt

By MINDELLE JACOBS -- Edmonton Sun

If a lot of people, particularly men, are already skittish about marriage, a recent court ruling in Ontario is sure to trigger panic attacks.

Despite our freewheeling attitude towards divorce, making a clean break - even with separation agreements - is not as easy as it sounds.

Uncontested divorce is supposed to be a breeze. You divvy up the assets, hire a lawyer to draft the settlement agreement and go your separate ways.

The upshot of a ruling last month by the Ontario Court of Appeal, however, is that your divorce agreement may not be worth the paper it's written on.

The case involves Eric and Linda Miglin, who split up after 15 years of marriage and signed an amicable separation agreement in 1994.

As part of the deal, Eric was to pay Linda $60,000 a year in child support for their four kids and $15,000 a year for five years, renewable by mutual consent, for his ex-wife's consulting services. (He continued to run the lodge they had owned for years.)

There is no evidence Linda was manipulated into signing a divorce settlement she didn't understand. The agreement couldn't have been clearer.

Both waived spousal support and promised not to launch court action to get it.

Linda "specifically abandons any claims she has or may have against the husband for her own support," according to the agreement.

In case that wasn't plain enough, the agreement added: "At no time now or in the future ... shall the wife seek support for herself regardless of the circumstances."

Linda also acknowledged the implications of not claiming support were explained to her by her lawyer.

She must have a short memory. In 1998, only a year after the divorce was finalized, she went after him for spousal support and a court granted it - $4,400 a month for five years.

Eric fought the ruling, but the Ontario Court of Appeal declared that the agreement Linda signed of her own free will wasn't fair. Not only that, it ordered Eric to pay spousal support indefinitely.

A separation agreement is only one of several factors which courts must consider when awarding spousal support, the appeal court said.

Judges are also required to weigh the self-sufficiency of the spouse applying for support, the economic advantages or disadvantages of the marriage and its breakdown and the financial consequences of caring for kids.

Since economic equity "appears to be the overriding objective" of the support provisions in the Divorce Act, the court explained, Linda wins the day.

In refusing to put a time limit on the spousal support order, the court said there was no evidence Linda is "deliberately or arbitrarily thwarting her economic self-sufficiency."

Maybe not. But there's a nauseating tang emanating from this whole affair. It's pretty sad when responsible adults can't rely on separation agreements and move on with their lives.

Furthermore, Linda has done women a great disservice. Yes, it is mostly females who end up poorer after divorce. But she signed an agreement, knew the consequences and went whining to court anyway. The impression it leaves is that women are gold diggers - forever plotting to screw their ex-husbands.

Even if divorce settlements are carefully worded, there's no guarantee, says Edmonton family lawyer Renee Cochard. "It's not reassuring - to men, particularly," she says.

So be forewarned. While marriage can be short, the downside of divorce can last forever.

"If you get married, know that there are significant economic obligations you're getting yourself into," says Osgoode Hall law professor Roxanne Mykitiuk.

Happy diamond shopping, guys.

Mindelle can be reached by e-mail at mjacobs@edm.sunpub.com.
Letters to the editor should be sent to letters@edm.sunpub.com.

Copyright © 2001, Canoe Limited Partnership.