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June 11, 2001

A deal is a deal

National Post

Will the real Judge Rosalie Abella please stand up? Does Ms. Abella, who sits on Ontario's Court of Appeal, believe legal agreements should be reopened and adjusted when circumstances change? Or does she think a deal's a deal? Apparently, it depends on political context.

In 1994, Eric Miglin agreed to pay Linda Miglin, his former spouse, $60,000 a year in child support. Their divorce settlement explicitly declared: "The Wife acknowledges that the implications of not claiming [spousal] support in this Agreement have been explained to her by her solicitor. At no time now or in the future ... shall the Wife seek support for herself, regardless of the circumstances."

Seems clear to us. Yet Ms. Miglin changed her mind and, in February, 2000, she convinced a lower court to award her $4,400 a month in spousal support for five years. Although the court reduced child support to $36,000 a year, the ruling left Mr. Miglin on the hook for $28,800 more annually than the parties had originally agreed to. Shouldn't the deal have been binding? Not according to Judge Abella. "Often, dependent spouses are in unequal bargaining positions as a result of the family dynamics," reads her decision. "As well, a dependent spouse may misapprehend his or her needs after separation and be unaware of the real cost of post-separation life." Going further, Judge Abella removed the five-year time limit on the spousal support order.

In other words, a deal isn't a deal.

Or is it? Just 31 months earlier, Judge Abella was singing a different tune in a case involving a disabled child. At age three, Lorrie Tsaoussis was struck by a car and suffered a skull fracture. Doctors expected her to recover fully and so, in 1992, Lorrie's mother, the driver and an insurance company agreed to a settlement of $5,420 plus $1,250 in costs.

Tragically, as Lorrie grew older, her abilities failed to develop as expected. Noting signs of brain damage "frequently do not manifest themselves until later," a doctor concluded in 1996 that Lorrie's "attention and concentration difficulties are attributable to the motor vehicle accident." In light of this new information, a lower court said it was in Lorrie's best interest to re-open the case and gave the green light for a $2-million lawsuit to proceed.

But Judge Abella and two of her colleagues brought the matter to a screeching halt. However unfortunate Lorrie's situation might be, they said, closed cases must remain closed. "Finality," they insisted, "is an important feature of our justice system." Quoting a scholar, their judgment reads: "The parties and the community require that there be a definite and discernable end to legal disputes ... Without a discernable end point, the parties cannot get on with the rest of their lives secure in the knowledge that the issue has finally been determined, but must suffer the considerable economic and psychological burden of indeterminate proceedings in which their respective rights and obligations are revisited and reviewed as circumstances change."

Well said. Yet while some may argue family law and personal injury law are as distinct as apples and oranges, a bedrock legal principle is a bedrock legal principle and should be applied universally. It is morally repugnant for finality to be used to shut down the claims of brain-damaged children but not the claims of able-bodied divorced women. Ontario's highest court should be ashamed of being party to such blatant double standards.

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