Globe and Mail

Bad agreements should be broken, Supreme Court told

By KIRK MAKIN, JUSTICE REPORTER
Wednesday, October 30, 2002 – Print Edition, Page A7
The Globe and Mail

OTTAWA -- It is unrealistic to expect spouses caught up in the emotion of a marital breakdown to draft ironclad deals that will stand the test of time, the Supreme Court of Canada was told yesterday.

Lawyer Philip Epstein said his client, Linda Miglin, is a typical example of a woman who unwittingly made a rotten deal that she should not be forced to live with for the rest of her life.

"It's very attractive to say the people should be left to make their own deals, but they may not be bargaining from an equal position," het said. "I think it is simplistic to say: 'The parties made their agreement -- let them live with it.' "

But Mr. Epstein faced a barrage of probing questions from seven of the nine judges; many of the queries focused on the unsettled state that would result if the court were to allow agreements to be easily reopened.

What incentive would people have to carefully structure plans for child custody, assets and support if agreements can be redrawn when one of the parties has second thoughts? asked Mr. Justice Frank Iacobucci.

"The delicate nature of this is that it gives a strong signal to the parties: Why pay a lawyer and go through all this?" he asked Mr. Epstein.

The Miglins were married in 1979. Five years later, they bought a multimillion-dollar lodge in Algonquin Park. Estranged in 1994, they signed an agreement that was carefully lawyered.

Yesterday, Mr. Epstein argued that his client simply erred when she waived spousal-support payments in favour of $60,000 a year in child support for their four offspring and a five-year "consulting contract" at $15,000 a year to help administer the lodge.

Mr. Epstein said an Ontario trial judge and the province's Court of Appeal were right to undo the Miglins' agreement and make an award of spousal support despite case law making such pacts impregnable to any legal means short of "a nuclear weapon."

However, the Supreme Court may be a tougher nut to crack. The judges aimed few questions at Mr. Miglin's lawyer, Nicole Tellier, but they grilled Mr. Epstein for nearly an hour.

Some of the judges wondered aloud whether ex-spouses would abide by separation agreements if they knew they would have a good shot at persuading judges to change them.

"They will if word goes forth from this court making it substantially clear to both parties that they should craft agreements that are fair," Mr. Epstein assured the court.

He painted his client as a "traditional" wife and mother who passed up career opportunities to rear the children and perform menial duties at the lodge. Mr. Epstein said Mrs. Miglin felt dominated and beholden to Mr. Miglin when she signed the agreement.

However, Ms. Tellier said Mrs. Miglin was anything but traditional and unsophisticated.

"At the end of the day, she was a woman with substantial assets. She wasn't -- as many women are -- impoverished as a result of an agreement that didn't take care of needs and necessities. She was educated, employable and used to using nannies."

Mr. Epstein conceded that, when possible, it is desirable to create a sense of finality that enables ex-spouses to reorder their lives. But the philosophy that underlies divorce laws is that fairness must prevail over all else -- including finality, he said.

Ms. Tellier stressed that a separation agreement should be disturbed only if changing circumstances are so dramatic as to render the deal "unconscionable."

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