Miglin+c.+Miglin

//Miglin v. Miglin, SCC, 2003//

__Facts__: The Miglins divorced and entered a comprehensive Separation Agreement to settle their financial and personal affairs following the breakdown of their marriage. In the agreement, the parties settled property equalization, custody, access and support of their children and a commercial contract affecting their business interests. __In the agreement, the spouses released one another from any claims to spousal support__. Mrs. Minglin later made an application for spousal support under the DA.

__Issues__: What role should a pre-existing agreement play in determining an application for spousal support? What is the proper approach for determining an application for spousal support pursuant to s.15.2(1) of the DA? Does the Pelech trilogy still apply? What weight should be given to a spousal support agreement that one party wants to modify? (Mr. Miglin also raised an argument regarding reasonable apprehension of bias of the trial judge, which was rejected by the Court of Appeal and the SCC.)

__Decision__: An agreement between the parties that is fairly negotiated, represents their intentions and expectations and complies with the DA should receive considerable weight. The Miglins’ Separation Agreement governs the parties’ post-divorce obligations towards each other. (Trial Court and Court of Appeal overturned)

__Reasoning:__ · Pelech trilogy (“clean break” approach) holds that a final agreement can only be overridden when there has been a significant (radical and unforeseen) change in the circumstances since the making of the agreement that is causally connected to the marriage. Court holds that the law of spousal support has evolved since Pelech, with Moge (compensatory approach: all 4 objectives of spousal support must be considered, including equitable sharing of economic consequences of marriage’s breakdown) and Bracklow (nuanced approach). Also, the 1985 DA makes explicit the objectives of spousal support and the factors to be considered in making an order, thus vesting significant discretion in trial judges. In light of these (sometimes competing) objectives, Pelech’s “clean break” approach is inappropriate. DA dictates that Courts must balance Parliament’s objective of equitable sharing of consequences of marriage’s breakdown with parties’ to contract and arrange their own affairs. The objective of certainty, autonomy and finality must be considered as well (s.15.2(6)). · “Material change” test (of CA) is not applicable: it was developed for s.17, whereas s.15.2 does not adopt it. · Court looks instead at all the circumstances at the time of application to determine whether continued reliance on the pre-existing agreement is acceptable. All the circumstances (1) at time of formation of agreement and (2) at time of application must be investigated. Court must balance parties’ interest in determining their own affairs with an “appreciation of the peculiar aspects of separation agreements generally and spousal support in particular”. · Contract law principles are not well-suited to the divorce/spousal support context: the emotions and concerns that are a natural part of divorce do not accord with the making of “rational economic decisions”; “the intimate nature of the marital relationship… makes it difficult to overcome potential power imbalances and modes of influence”; and the full impact of the marriage’s breakdown is “something that only becomes apparent over time” (paras.74-77). While an agreement is only one factor, it can only be set aside where it can be shown that it fails to be in substantial compliance with the objectives of the DA. a) **Circumstances of Execution** : no definitive list of factors, but Court should consider all conditions of the parties set out in s.15.2(4)(a) and (b), including any oppression, pressure or other vulnerabilities; the conditions of negotiations, including duration, location and professional assistance. (NB: unconscionability is not the standard). Professional assistance can help overcome systemic imbalances between the parties; pressure due to power imbalances cannot be presumed; no presumption that emotions make agreement impossible. b) ** Substance of the Agreement** : If execution is ok, proceed to analysis of substance, but the greater the vulnerabilities in a), the more searching the investigation must be in b). Court analyzes extent to which agreement complies with factors and objective of the DA (broadly). Only a significant departure from DA will warrant Court’s intervention. Court must consider arrangement in its totality. If found problematic, does not mean entire agreement must be set aside – parts can be adjusted. In the Miglins’ case: Miglins’ Separation Agreement is accorded significant weight as its formation (negotiation + execution) was acceptable (lots of time, wife received plenty of legal and financial advice) – any vulnerability was compensated for by legal counsel she received. Their agreement is not a departure from objectives of DA, and assets were fairly divided. __Dissent__: Pelech does not apply. The appropriate threshold for overriding a support agreement in an application for spousal support is whether “the agreement is objectively fair at the time of the application” – Court has broad jurisdiction – emphasis on whether the agreement “has in fact brought about an equitable distribution of the economic consequences of the marriage and its breakdown”. Dissent holds that Miglins’ agreement did not properly apportion the financial consequences.
 * Stage 1: Formation of the Agreement**
 * Stage 2: Application of the Agreement:** Has situation of the parties changed such that their intentions are no longer reflected in its application and it is no longer in compliance with the DA? New circumstances were not reasonably anticipated (but need not be “radically unforeseen” or causally connected to the marriage”). Some change is always foreseeable – prospective nature of Ks. Focus is on correspondence to original intentions.

__Ratio__: SCC frames issue as one of statutory interpretation. Creates 2 step test, but frames it as statutory interpretation. S.15.2(4)(c) of the DA makes space to look at agreements of the parties (outside documents).