Law Times

Friday, July 22, 2002

Abella prediction at L'Heureux-Dubé retirement dinner:

Miglin on launching pad for SCC

For Law Times

The recent dinner for former Supreme Court justice Claire L'Heureux-Dubé not only provided a send-off for the retiring judge, it also amply demonstrated how the now-famous family law case of Miglin v. Miglin has achieved near-mythic status in Canadian legal circles.

Lawyers are obsessive about Miglin because it's a troublesome ruling that basically allows spouses who have signed away their rights to support to re-open their "done deals" - even many years after the payor spouse thought the obligation came to an end.

Imagine the surprise and delight of the 440-or-so judges and lawyers attending the L'Heureux-Dubé dinner on May 6, when Ontario Court of Appeal Justice Rosalie Silverman Abella, the judicial mind behind Miglin, used her ruling to do more than create consternation and uncertainty among payer spouses - she also used it to generate big laughs.

Abella, clearly speaking tongue-in-cheek, told the audience that Chief Justice Roy McMurtry (who was sitting about 10 feet away) had given her special "permission to read a Court of Appeal "judgment" due to be released "tomorrow."

Reading from the "judgment" Abella said: "This is a class action brought on behalf of all Canadian women to set aside the provision its the separation agreement between justice Claire L'Heureux-Dubé and the Supreme Court of Canada, requiring her to retire at the age of retirement.

"The women concede," Abella went on "that the agreement appears to be final and binding -- and that a mandatory retirement was foreseeable. But they argue that they are more depressed about the retirement than they expected to be -- and that this depression represents a `material change in circumstances.'"

The audience roared with laughter at this.

She continued: "We rely on the Ontario Court of Appeal decision in Miglin v. Miglin, recently upheld by the Supreme Court of Canada," -- and here Abella stopped and "corrected" herself -- "sorry, soon to be upheld by the Supreme Court of Canada."

This last bit brought the house down.

Leaving aside the appropriateness of an appellate judge commenting (even satirically) on her own judgment while its before the Supreme Courts, the audience reaction shows how deeply Miglin has bored into the legal collective unconscious.

The top court also seems keen to hear the case. Last November, Philip M. Epstein, of Toronto's Epstein Cole LLP told Law Times the husband's leave of application was "the fastest granting of leave in the history of the Supreme Court -- 13 days before they granted leave."

Sources close to the case say Miglin is scheduled to be heard by the court Oct. 22 and the factum of appellant husband Eric Miglin has already been filed and served by his lawyer, Toronto sole practitioner, Nicole J. Tellier.

Epstein's factum must be filed by Sept. 2 and it's possible the Women's Legal Education and Action Fund (LEAF) will intervene.

Sondra O. Gibbons, LEAF's director of litigation, says they will be considering whether to intervene at a meeting at the end of this month.

In Miglin, Abella (with Chief Justice McMurtry and Justice Michael Moldaver concurring) rejected the Supreme Court's classic Pelech trilogy, which, in 1987, laid down ground rules for when a spouse could apply for spousal support notwithstanding a separation agreement limiting such claims.

The court encouraged both sponsor self-sufficiency and finality by creating a two-part test for varying the terms of a done deal: Variation could only be granted given "a radical and unforeseen change of circumstances" that was "causally connected to the marriage."

But courts have applied the "causal connection" test with varying degrees of rigour, and since the Pelech trilogy was decided under the 1968 Divorce :Act (substantially replaced in 1985), some argued the trilogy was no longer applicable.

In April 2001, Abella, followed this line in ordering Miglin to pay his ex-wife $4,400 per month indefinitely, even though the ex had signed a 1994 separation agreement permanently waiving all spousal support.

Abella found spouses could vary a done deal if they could show a "material change in circumstances" had occurred since the agreement or divorce order "which if known at the time, would likely have resulted in a different order."

Abella based her reasoning on the 1995 minority judgement by L'Heureux-Dubé in L.G. v. G.B. The court also seems to have upheld it in a 1994 case: Masters v.. Masters.

Philip Epstein said Eric Miglin's leave application was "the fastest granting of leave" in the Supreme Court's history.

But Abella didn't pay much attention to majority opinion: "Other than the brief reasons in Masters," Abella said, "recent decisions from the Supreme Court of Canada appear to suggest, both directly and indirectly, that the court may he willing to reconsider the continued applicability of the threshold pronounced in the trilogy."

These "recent decisions" seem to consist mostly of L.G. v.. G.B. where, according to Abella, "the question of the continued applicability of the trilogy was circumvented by the majority, but was fully explored in the minority concurring opinion."

While late justice John Sopinka concluded L.G v.. G.B. was "not the appropriate case" to determine whether the trilogy still applied under the 1985 act (the husband had sought to vary a consent order for spousal support under s. 17 of the 1985 act) , L'Heureux-Dubé concluded it had been superseded by the new act.

Abella also draw succor from then-justice Beverley McLachlin's remark in 1992's Moge v.. Moge, that support is "first and last a matter of statutory interpretation."

Abella contrasted the language of the divorce acts in 1968 and 1985, concluding the new language made it "difficult to justify the continued application of the trilogy which emanated from a completely different statutory scheme."

The language in s. 15 of the 1985 act "is so dramatic a departure from the linguistic and conceptual minimalism of s. 11 of the former Divorce Act that statutory interpretations emanating from the old legislation, such as the trilogy, cannot, it seems to me, continue to apply."

Abella went on to posit a new test -- "a two-stage inquiry," where a judge must first "determine whether there has been a material change in circumstances," and second, "what amount of spousal support, if any, is justified under the statutory principles set out in s.15 of the Divorce Act."

Linda Miglin slid suffer a material change of circumstances, first in her childcare responsibilities when her ex-husband did not shoulder his share of duties under the parenting agreement. That, in turn, negatively affected "her range of employment options" and therefore "affected her ongoing need for support."

She "experienced economic disadvantage or hardship arising from the marriage and its dissolution, yet the long-term financial consequences of her childcare responsibilities were not equitably acknowledged in the economic arrangements made by the parties."

She dismissed the husband's appeal, but allowed the wife's cross-appeal, removing the five year limit on support.