Monday, October 28, 2002
Court to rule on reopening divorce deals
Supreme Court tackles case of wife who got cash after waiving supportJanice Tibbetts
The Ottawa Citizen
When Eric and Linda Miglin signed their separation agreement in June 1994, they thought it was forever.
Mr. Miglin walked away with Killarney Lodge, the couple's upscale waterfront resort in Ontario's picturesque Algonquin Park, that 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. The partners inked their signatures on a deal that was to be a "full-and-final settlement" in which they agreed that "no pattern of economic dependency has been established in their marriage."
But Ms. Miglin, realizing years later 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.
Almost a decade after their 16-year relationship crumbled, the Miglins will bring their dispute to the Supreme Court of Canada tomorrow as it considers the high-stakes question of whether final agreements can be reopened when circumstances change. The 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."
Mr. Miglin, 52, wants the court to overturn the Ontario Court of Appeal, which ruled last year that a supposedly 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.
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.
Mr. Miglin argues 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.
In a ruling last year, Justice Rosalie Abella, of the Ontario Court of Appeal, denied Mr. Miglin's appeal.
© Copyright 2002 The Ottawa Citizen