Globe and Mail

Hey guys, let death do you part

The Globe and Mail
Thursday, May 3, 2001

On Valentine's Day in 1993, Linda Miglin told her husband she wanted out. It was three days before their 14th wedding anniversary. The settlement was not uncivil, as those things go. She kept the house; he kept the business (a lodge in Algonquin Park), and they signed a parenting agreement. On top of child support, he promised her an annual consulting fee of $15,000 for the next five years. She said she did not want any spousal support.

The release she signed said, "The Wife specifically abandons any claims she has or may have against the Husband for her own support. . . . At no time now or in the future . . . shall the Wife seek support for herself, regardless of the circumstances."

Later on, she changed her mind. And now, the Ontario Court of Appeal has ruled that Eric Miglin must cough up another $52,800 a year to support his former wife, indefinitely.

"Judicial paternalism at its worst," fumes divorce lawyer Stephen Grant, who's the go-to guy for the Bay Street set.

"This case depreciates the value of separation agreements to an all-time low," says Harold Niman, who acts for both husbands and wives. (He recently won $75,000 a month in spousal support for one former wife.)

"I don't understand why husbands' lawyers are all this fussed about it," says Carol Curtis, who mostly acts for wives. "It's fantasy to think that you are not going to have a lifetime obligation to someone who has taken herself out of the work force to wash the socks and raise the kids."

So the guy is on the hook for life, no matter what he thought the divorce deal was?

"Why shouldn't he be?" she says. "Didn't he think the marriage bond was for life?"

The marriage bond may not be for life. But the money bond's a different thing. Last year, Alan Plaxton was ordered to pay his former wife, Beverley Bailey, interim support of $5,000 a month. She's in her late 50s and couldn't find steady work. She needed money, and he had plenty. What made the case so controversial was that their marriage had been dead for 15 years and his financial obligations had legally ended in 1990.

Rather than go back to trial, Mr. Plaxton eventually agreed to $7,000 a month, indexed, till death do them part.

The Miglin decision, written by Madam Justice Rosalie Abella, was unanimous. Because it is a higher-court ruling, it has sweeping legal significance. It has demolished a set of earlier judgments that made it very tough for former spouses to reopen divorce deals. Divorce lawyers fear that going back to court has now become too easy. And they say they're in the dark about how to strike the kind of deal their clients want -- a clean break.

"It means a lot of litigation in the family law arena, and it ultimately means that the most common way of settling a family law dispute doesn't mean that it's settled," says Philip Epstein, who is, interestingly, Ms. Miglin's lawyer. "It creates a great deal of confusion for lawyers."

If you'd like to be the judge, here's a bit more detail on the Miglin case. Eric, now 51, is a Harvard MBA. When he met Linda, now 50, she was a secretary in a bank. Later, she got a university degree. They bought the lodge together and ran it as a family business. It did well. They bought a nice Toronto house and had their kids, whom she took care of.

After the civilized divorce, things went downhill. They fought. She stayed at home to raise the kids (the youngest is now 10.) After three years, he cut off her consulting contract. She took him back to court and argued that the consulting contract was really spousal support. The trial judge, who took a very dim view of Mr. Miglin, not only agreed but upped the payment to $4,400 a month for five years. Mr. Miglin appealed, and lost, and, worse for him, the appeal court removed the five-year cap and made it open-ended.

Today, three kids live with her, and one with him. Her income is $0. His income is $186,130 a year, and he owes her $86,004 of it.

So, which takes precedence? A marriage obligation or a divorce contract?

"If marriage was forever, there wouldn't be a divorce act that allows people to make contracts," snaps Steven Grant.

"Spousal support is a pendulum," says Carol Curtis. "In the late '80s, many former wives got no support at all, even if they were sick." Since then, the pendulum has taken a mighty swing. "Never in my practice has there been so much for so many for so long."

Judges are people, too. And in no area of the law do the values and views of individual judges have so much weight as in divorce and custody decisions. "For many years, it was argued that judges' discretion wasn't good for women," says Philip Epstein. "Now, the shoe is on the other foot."

And if you're a former husband, be very, very nervous.

Copyright 2001 Globe Interactive, a division of Bell Globemedia Publishing Inc.