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May 2, 2001

No means no

Re: Divorce Deals Never Final: Court, April 28.

Michael A. Menear
Family Law lawyer in London, Ont.
Letter to the editor
National Post

There is much that is unsettling about the Ontario Court of Appeal decision of Miglin v. Miglin. The Ontario Court of Appeal ordered Eric Miglin to pay his former wife, Linda Miglin, $4,400 per month indefinitely, despite Ms. Miglin permanently waiving spousal support in a final separation agreement in 1994. It did so in circumstances in which, on its face and taken as a whole, the separation contract was not unconscionable or even unfair to Mrs. Miglin. In addition, there is the unsettled feeling that the Court did not have to intervene to set aside the contract between Mr. and Mrs. Miglin, but did so because it wanted to.

In effect, the Court is saying: You can contract, but only if the terms are "fair on our terms." Thus, the basis for setting aside a separation contract is now ideological. The fact the parties to a contract do not really know what the Court's "fairness" is before they make their deal, and the fact that justices of the Ontario courts are not uniform in their concepts and application of fairness does not stop the courts from intervening. Why? Because, in every case, there is a misguided view that they are contributing to "a more just society." In the Miglin case, it is clear from the separation contract terms that finality or "clean break" was central to the deal. The Court attempts to justify its intervention to impose its ideologically based will on the basis of enumeration of other objectives in the Divorce Act, despite the fact these other objectives were not the basis upon which the parties made their deal at the time.

The cost of decisions like this is simply too great. Cases like this foster dependency, award victimhood and undermine accountability for one's own decisions. Freedom to contract necessitates a corresponding societal obligation to uphold and enforce them. This means saying "no" or "we won't interfere" often where improvements could be made and the need to intervene apparent.

Judicial restraint takes discipline and wisdom. As a lawyer, I thought my skills would be to advocate before the courts for my clients. I am being pushed to the conclusion that my job will become advocating against trends and developments within the judicial system itself.

Michael A. Menear, Family Law Specialist, London, Ont.

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