canada.com

Monday, October 28, 2002

High court to rule on divorce finality

Wealthy hotelier appeals reopening of settlement

Janice Tibbetts
Southam News
canada.com

A wealthy Ontario hotelier will ask the Supreme Court of Canada tomorrow to uphold the sanctity of supposedly final divorce agreements, even when circumstances change.

Eric Miglin, 52, wants the high court to overturn the Ontario Court of Appeal, which ruled last year a final deal can be reopened if one spouse can prove there has been "material change in circumstances" that would have likely led to a different agreement if they had been known at the onset.

In June, 1994, he and then wife, Linda, signed a separation agreement, what was to be a "full-and-final settlement" in which they agreed that "no pattern of economic dependency has been established in their marriage."

Mr. Miglin walked away with Killarney Lodge, the couple's upscale waterfront resort in Algonquin Park, which takes in millions of dollars annually.

Ms. Miglin got the family's Toronto home, now worth more than $500,000, as well as $60,000 a year to support their four young children. Mr. Miglin was absolved from ever paying spousal support to his estranged wife.

But Ms. Miglin, who years later said it was hard to find a paying job because she had few marketable skills and had spent her time caring for her children, took her ex-husband to court to alter their agreement. In a landmark ruling, she won $4,400 a month for personal support.

Their case, which could affect tens of thousands of estranged Canadian couples who thought their divorce settlements were iron-clad, is being closely watched by family law specialists.

"We're waiting for the Supreme Court to give us some guidance as to when you can go back, if ever," said Toronto lawyer Cheryl Goldhart. "Should the gates be open this wide?"

The case reaches the court at a time when the concept of a "clean break"after divorce has effectively become a legal relic.

Mr. Miglin, who has a masters degree in business administration from Harvard University, contends his ex-wife "made a good bargain" and, in any event, a deal is a deal.

"People organize their lives in reliance upon the agreements they have with their former spouses," Mr. Miglin's lawyers argue in a legal brief.

"In a society where the trend towards shorter and successive relationships is a reality, litigants deserve direction regarding the treatment their contracts will be given by the court."

Ms. Miglin, who has a bachelor's degree in English literature, counters she was pressured into waiving spousal support at a time when she was emotionally vulnerable.

"Linda Miglin trusted and relied on her husband and as a result, entered into a terrible bargain that neither recognized her contribution to the marriage nor fairly distributed the economic consequences of the breakdown of the marriage," says the 50-year-old woman's court submission.

"The appellant [Eric Miglin] told her 'not to worry' and that all would be fine. But all was not fine."

The Miglins' court submissions give starkly conflicting accounts of their 16-year relationship and its stormy aftermath.

He says that they had a modern marriage in which she was an equal partner in their business and that she steadily advanced her career and education as the children received "seven-days-a-week coverage by nannies," leaving her "highly employable" when the marriage collapsed.

She contends the relationship was a traditional one in which he took care of the family's finances and she raised the children, even when he went off on his own in the lodge's off-season to exotic places such as the Himalayas and Antarctica. Even at the lodge, she says, she was responsible for the domestic side of the business, such as planting flowers and organizing menus.

In a ruling last year, Madame Justice Rosalie Abella, of the Ontario Court of Appeal, denied Mr. Miglin's appeal.

"Often, dependent spouses are in unequal bargaining positions as a result of the family dynamics," wrote Judge Abella. "As well, a dependent spouse may misapprehend his or her needs after separation and be unaware of the real cost of post-separation life."

Mr. Miglin is also challenging the ruling from the trial judge, whom Mr. Miglin says was biased against him from the start and frequently expressed personal opinions, including such comments as the divorce settlement "certainly was not an equal split."

The Supreme Court has already acknowledged self-sufficiency after the collapse of a marriage may be an "impossible aspiration."

In the 1999 ruling in Bracklow v. Bracklow, the judges widened the grounds for collecting spousal support.

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