Toronto Sun

May 2, 2001

Divorce wars

Recent ruling could mean no marriage ever 'finally' over

By JEAN SONMOR -- Toronto Sun

The family law bar is up in arms about a ruling last week by Court of Appeals Judge Rosalie Abella that shifts the earth dramatically under their feet.

If Abella's ruling sticks, no marriage will ever be "full and finally" over.

The case gives an ex-wife a whopping $4,400 monthly support payment indefinitely -- even though she signed a waiver seven years ago renouncing any claim to support payments.

The reason? Circumstances had "materially" changed. She ended up earning less and having more childcare responsibilities than it looked like she was going to have when they signed the agreement.

What's new is that the situation used to have to change "radically," and that test was almost never met. Now all that has to happen is that you lose your job and your circumstances "materially" alter.

The idea was to even up the ledger for women who end up poverty-stricken after divorce. But settlement agreements have never been as absolute as we thought.

I got divorced 20 years ago and the only thing I remember about the paperwork from that painful time was the release I had to sign. I was taking none of the marriage assets and the release simply acknowledged that in doing so, I was acting against my lawyer's advice.

I inferred from that I might be able to sue my lawyer if later I decided I had gotten a raw deal. But it certainly didn't leave me thinking that after I signed the "full and final" release I had any claim on my former husband. Seems that belief was folly even then.

I don't know if our settlement would have been deemed "unconscionable" or a "shock to the court," but if it did, judges even then would have had the right to strike it down, says family law lawyer Laurie Pawlitza.

But, certainly, in those days, reopening divorce settlements was rarely on anybody's radar screen. A deal was a deal and if you were foolish or ill-advised, too bad.

But that all changed in the late '80s. Divorce was an increasingly common experience.

New precedents obliged the court to consider other things in setting spousal support and not just rubber stamp the agreement hammered out by the divorcing couple and their lawyers.

There was an emphasis on encouraging each partner to be self-sufficient. And so, for years, there were time limits on support payments. A woman who'd given up her career to keep house and raise children might be entitled to support payments until she upgraded her credentials or retrained. Somewhere down the line, however, it was clear this would end and she would support herself.

But always that old test of "unconscionable" or a "shock to the court" applied, so there was protection against the obvious problem of the richer spouse hiring high-priced legal talent to get a one-sided deal.

Beyond those cases though, the final settlement was considered final -- until recently.

But for the past two or three years, final settlements have been looking more vulnerable. At the Supreme Court, Justice Claire L'Heureux-Dube, a feminist judge who often draws the ire of men's rights groups, has offered minority opinions challenging the right of rich former partners to turn their backs completely on poor or sick former spouses simply because they'd signed off on the marriage.

Hints that marriage may be forever were in the air in several recent rulings, but the family law bar was shocked by last week's ruling in the case of Eric Miglin, owner of Killarny Lodge. He was the man ordered to pay his former wife, Linda, $4,400 in monthly support payments indefinitely.

"None of us (family law lawyers) expected this," says Pawlitza. "It wasn't even fully argued in the appeal, just introduced in the afternoon of the last day."

Nevertheless, everything has changed for divorce lawyers.

"It will cause us great difficulty in the trenches," says Stephen Grant, who has represented some of the city's richest men in divorce proceedings. "Everybody will be very leery of settlements, and that will lead to much more litigation."

"Why would anybody settle? That's the $64,000 question," says Pawlitza.

In fact, it means that there is no difference in the ongoing obligations between somebody who pays a lump sum and tries to walk away and somebody who agrees to ongoing support payments. Both can be opened up if there is a "material" change in circumstances. That means if an ex-wife loses her job, she can go back and get the settlement reopened.

Chaos is coming to a family court near you.

Personal note to my ex: Don't worry. I've still got a job ... unless I miss my deadline.


Jean Sonmor can be reached by e-mail at jsonmor@sunpub.com.
Letters to the editor should be sent to editor@sunpub.com.

Copyright © 2001, Canoe Limited Partnership.