Globe and Mail

Top court to probe separation agreements

When couples decide to split, are their deals ever ironclad?

By KIRK MAKIN
Tuesday, October 29, 2002 – Print Edition, Page A7
The Globe and Mail

Linda and Eric Miglin's separation agreement was built to last until death did them part.

But the agreement began to unravel after only two years, around the time Mrs. Miglin was converted from Anglicanism to Orthodox Judaism and began to have memories of childhood sexual abuse.

Worried at what he interpreted as signs of instability in his former wife, Mr. Miglin became infuriated when she sold her home and moved their four children -- the couple shared custody -- north of Toronto.

Mr. Miglin took to knocking unexpectedly at the door of the new home and hanging around the children's classrooms to see what they were being taught.

Relations between the battling Miglins escalated into a classic marital brawl; one so filled with mistrust and recrimination that a trial judge would complain that "this whole case rides on a cushion of pettiness."

It was a far cry from the close relationship the couple forged after marrying in 1979 and creating a multimillion-dollar success out of Killarney Lodge in Algonquin Park, which they bought for slightly more than $1-million in 1984.

Mr. Miglin applied himself to the business. With a babysitter tending the children during work hours, Ms. Miglin was in charge of administrative matters.

The lodge was soon grossing $1.5-million annually. But the relationship soured, and Ms. Miglin and the children moved to Toronto. Mr. Miglin divided his time between the lodge and the city.

In 1999, five years after the couple signed an agreement on custody, support and parenting of the children, Mr. Justice Peter Tobias of Ontario Superior Court accepted Mrs. Miglin's request to reopen the agreement.

Today, the Supreme Court of Canada will sift the ashes of the Miglin marriage and determine what will permit a support agreement to be reopened.

"This decision could be one of the most fundamental decisions in Canadian family law in decades," said Grant Gold, a Toronto family-law specialist.

Mrs. Miglin's lawyer, Philip Epstein, will portray his client as an unskilled, trusting and devoted mother who signed a bad deal under great stress.

"Just because a relationship ends, the influence one spouse has over the other does not necessarily end," Mr. Epstein says in his legal brief. "Finality is not an end in itself, and it should not be used to justify fettering a court's discretion to override unfair agreements."

However, Mr. Miglin's lawyer, Nicole Tellier, will insist that the contemporary "culture of settlement" envisions two mature adults who are willing to stand by the deals they make unless some "unconscionable" change intervenes.

She intends to paint Mrs. Miglin as an erratic personality who hoped to reap a windfall by appearing long-suffering, helpless and unemployable.

Lower courts are looking to the nine Supreme Court judges to provide guidance for decades to come on several significant questions. Among them:

If the Miglin agreement is found invalid, notwithstanding the considerable legal consultation that went into it, can any agreement ever be ironclad?

What changes in circumstance will spouses have to prove in future to open an existing order?

Which jurisprudential road map will take precedence in cases of this sort: the 1985 Divorce Act, which emphasizes flexibility in agreements, or a famous trilogy of support cases in which the Supreme Court made finality an overriding goal?

Can a trial where the judge made sarcastic and damning interventions be allowed to stand? When does judicial interference become unacceptable bias?

Focusing on bias as a key point, Ms. Tellier castigates the judge in her brief for making flippant comments, undermining key witnesses, and once instructing Mr. Miglin's lawyer not to "fuddle-duddle around."

According to their 1993 separation agreement, the couple would share custody, with the mother's home the children's primary residence. Mr. Miglin, 52, swapped his share of the family home -- after paying off the mortgage -- for his ex-wife's share of the lodge.

They also negotiated a five-year, renewable separation agreement under which Mrs. Miglin, 50, would earn a $60,000 a year "consulting fee" for doing work on the lodge. In return, she relinquished any future support claim.

But in her claim to reopen the agreement, Mrs. Miglin alleged that a "radical, unforeseen change of circumstance" would justify granting her support and full custody of the children.

She said the first radical change was Mr. Miglin's non-stop interference in their lives. The second, she said, was his violation of a verbal understanding that her "consulting agreement" would be extended before it expired.

In its landmark 1987 rulings known as the Pelech trilogy, the court based its interpretation of three agreements on the 1968 Divorce Act. The judges tried to cloak support agreements in an aura of finality, encouraging couples to make a clean break.

According to the trilogy, a judge could reopen or alter an agreement only if one side established a radical, unforeseen change of circumstance which was "causally connected to the marriage."

By the time the trilogy was released in 1987, the Divorce Act had been remodelled two years earlier, but the Supreme Court made no reference to the change.

That has left lawyers wrestling over whether the finality espoused in the Pelech trilogy was meant to apply to cases decided after the 1985 Divorce Act. It has taken the Supreme Court 15 years to tackle that question head-on.

After 11 days of evidence in the Miglin case, Judge Tobias shocked family lawyers in 1999 by saying the separation agreement was innately unfair to Mrs. Miglin.

Acting under the stress of her crumbling marriage, he said, Mrs. Miglin had agreed to a deal that was heavily weighted against her interests. Judge Tobias said Mr. Miglin became obsessed and acted "outlandishly."

Judge Tobias dismissed the five-year consulting agreement as nothing less than spousal support disguised to give Mr. Miglin tax benefits.

He granted Ms. Miglin spousal-support payments of $4,400 a month for a further five years, monthly child support of $3,000, and ruled that three of the children would live principally with their mother. Mr. Miglin would get them every other week. The fourth child could remain with her father, in accordance with her own wishes.

Upholding his decision, a 3-0 majority of the Ontario Court of Appeal criticized the trilogy for setting the bar "almost unattainably" high for spouses who want to alter an unfair agreement.

Madam Justice Rosalie Abella, Chief Justice Roy McMurtry and Mr. Justice Michael Moldaver dismissed the trilogy as being at odds with the sharply different philosophy underlying the 1985 Divorce Act.

While the trilogy was preoccupied with clean breaks and self-sufficiency, they said, the Divorce Act prefers simple fairness and the amelioration of economic hardship.

The Ontario judges said that in future, a spouse should be able to reopen separation agreements simply by showing that a material change of circumstances had occurred.

Copyright © 2002 Bell Globemedia Interactive Inc.