Miglin v. Miglin (2003), 302 N.R. 201 (SCC)
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Temp. Cite: [2003] N.R. TBEd. AP.048
Eric Juri Miglin (appellant) v. Linda Susan Miglin (respondent)
(28670; 2003 SCC 24; 2003 CSC 24)
Indexed As: Miglin v. Miglin
Supreme Court of Canada
McLachlin, C.J.C., Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps, JJ.
April 17, 2003.
Summary:
A wife applied for spousal support under s. 15 of the Divorce Act, 1985, notwithstanding that she had waived support in a separation agreement.
The Ontario Superior Court, in a decision reported [1999] O.T.C. Uned. B61, inter alia, allowed the wife’s application and awarded her $4,400 as monthly spousal support limited to five years. The husband appealed. The main issue was whether the threshold for varying terms of spousal support agreements established in the Pelech trilogy of cases by the Supreme Court of Canada (i.e., that there had to be a radical unforeseen change in circumstance which was causally connected to the marriage) continued to apply under the 1985 Divorce Act. The wife cross-appealed seeking to set aside the five year limit on spousal support.
The Ontario Court of Appeal, in a decision reported 144 O.A.C. 155, dismissed the appeal on the issue of spousal support. The court held that the threshold for variation of support agreements established in the trilogy of cases no longer applied under the 1985 Divorce Act. Rather, the threshold was whether there was a material change of circumstances. In this case, there were factors representing such a change. The court affirmed the award of spousal support of $4,400, but allowed the cross-appeal and set aside the five year time limit. The husband appealed.
The Supreme Court of Canada, LeBel and Deschamps, JJ., dissenting, allowed the appeal. The court stated that the narrow test enunciated in the trilogy was not appropriate in the current statutory context. Rather the court adopted a two stage test. The court stated that where the parties have executed a pre-existing agreement, the court should look first to the circumstances of negotiation and execution to determine whether the applicant has established a reason to discount the agreement. The court should also examine whether the substance of the agreement, at formation, complied substantially with the general objectives of the Act. Secondly, the court should ask whether, viewed from the time the application was made, the applicant established that the agreement no longer reflected the original intention of the parties and whether the agreement was still in substantial compliance with the objectives of the Act. Applying this two stage test, the court held that in these circumstances, both courts erred in giving the parties’ agreement insufficient weight. The court therefore reversed both the decision of the trial judge and that of the Court of Appeal respecting the application for spousal support.
Courts – Topic 592
Judges – Duties – Duty to conduct fair and impartial proceedings – [See both
Courts -Topic 686
].
Courts – Topic 686
Judges – Disqualification – Bias – By trial judge – The Supreme Court of Canada stated that “the appropriate test for reasonable apprehension of bias is well established. The test … is whether a reasonable and informed person, with knowledge of all the relevant circumstances, viewing the matter realistically and practically, would conclude that the judge’s conduct gives rise to a reasonable apprehension of bias … A finding of real or perceived bias requires more than the allegation. The onus rests with the person who is alleging its existence … the assessment is difficult and requires a careful and thorough examination of the proceeding. The record must be considered in its entirety to determine the cumulative effect of any transgressions or improprieties …” – See paragraph 26.
Courts – Topic 686
Judges – Disqualification – Bias – By trial judge – A husband and wife with four children separated – Notwithstanding a separation agreement, the wife sought sole custody of the children and child and spousal support – The trial judge awarded spousal and child support and joint custody – The husband appealed, alleging unfairness and bias because the judge made numerous interjections during trial – The Ontario Court of Appeal held that while the trial judge’s interventions were highly subjective and bordered on being inappropriate, looking at the trial as a whole, the trial judge’s comments did not warrant a new trial – The husband appealed – The Supreme Court of Canada held that there was no reason to interfere with the Court of Appeal’s assessment on the issue of bias – The court stressed, however, “how critical it is for trial judges to maintain at all times an appearance of impartiality and fairness when presiding over acrimonious matrimonial disputes. Trying as the conduct of the parties may be, trial judges must be alive to the emotionally charged nature of the proceedings. Parties to litigation of this kind may feel particularly vulnerable and sensitive. Trial judges should measure the wisdom of their interventions accordingly” – See paragraphs 25 to 27.
Family Law – Topic 3353
Separation agreements – Effect of agreement – In divorce actions – Corollary relief – [See all
Family Law – Topic 4006
].
Family Law – Topic 3356
Separation agreements – Effect of agreement – Maintenance – [See all
Family Law – Topic 4006
].
Family Law – Topic 3361
Separation agreements – Effect of agreement – Waiver of right to maintenance – [See second and third
Family Law – Topic 4006
].
Family Law – Topic 3371
Separation agreements – Variation – General – [See all
Family Law – Topic 4006
].
Family Law – Topic 3995
Divorce – Corollary relief – General – Divorce Act 1970 v. Divorce Act 1985 – [See first
Family Law – Topic 4006
].
Family Law – Topic 4000
Divorce – Corollary relief – Maintenance and awards – General principles – [See first and second
Family Law – Topic 4006
].
Family Law – Topic 4006
Divorce – Corollary relief – Maintenance and awards – Awards – Effect of agreements – In 1987, the Supreme Court of Canada released a trilogy of judgments (Pelech, Caron and Richardson) decided under the support provisions of the Divorce Act 1970 – The trilogy established a threshold for varying spousal support agreements (i.e., that there had to be a radical and unforeseen change in circumstance which was causally connected to the marriage) – The Supreme Court of Canada stated that the narrow test enunciated in the trilogy for interfering with a pre-existing agreement was not appropriate following enactment of the 1985 Divorce Act – Under s. 17(4.1) of the 1985 Act the court was directed to consider a change in circumstances only where the application was for variation of an existing spousal support order – On an initial application for support under s. 15.2 there was no such similar direction – “On a plain reading of the statute, then, there is simply no basis for importing a change threshold, radical, material or otherwise, into the provision. Indeed, on an initial application for support, the very concept of ‘change of circumstances’ has no relevance, except to the limited extent that there might have been a pre-existing order or agreement that needs to be considered” – See paragraphs 29 to 47.
Family Law – Topic 4006
Divorce – Corollary relief – Maintenance and awards – Awards – Effect of agreements – The Supreme Court of Canada discussed the proper approach to determining an initial application for spousal support pursuant to s. 15.2(1) of the Divorce Act 1985, where the spouses had previously executed a final agreement that addressed all matters respecting their separation, including a release of any future claim for spousal support – The court adopted a two stage approach – At the first stage the court should look to the circumstances of negotiation and execution of the agreement to determine whether the applicant has established a reason to discount the agreement – The court should then examine whether the substance of the agreement, at formation, complied substantially with the general objectives of the Act – Only a significant departure from the general objectives of the Act would warrant the court’s intervention – At the second stage, the court should ask whether, viewed from the time the application was made, the agreement continues to reflect the original intention of the parties and whether it would still be in substantial compliance with the objectives of the Act (i.e., the court must consider whether the situation of the parties at the time of the application would make it no longer appropriate to accord the agreement conclusive weight) – The court noted that a change in the parties’ circumstances would have to be significant to justify disregarding the agreement in its entirety – Accordingly, it would be necessary to show that these new circumstances were not reasonably anticipated by the parties, and had led to a situation that could not be condoned – See paragraphs 64 to 91.
Family Law – Topic 4006
Divorce – Corollary relief – Maintenance and awards – Awards – Effect of agreements – A couple entered into a comprehensive separation agreement which purported to settle all aspects of their marriage breakdown, including a waiver of spousal support by the wife – Approximately four years later the wife applied for spousal support under s. 15.2(1) of the Divorce Act (1985) – The Supreme Court of Canada held that the radical and unforseen change in circumstances threshold test for variation of spousal support established in the 1987 Supreme Court of Canada trilogy of judgments (Pelech, Caron and Richardson), decided under the support provisions of the Divorce Act 1970, was not applicable under the 1985 Divorce Act – Rather the court set out a two stage test in accordance with the 1985 statutory provisions – In applying the test to the facts of this case, the court held that the global separation agreement should be accorded significant and determinative weight – No improper circumstances surrounded the negotiation and execution of the agreement and nothing in the substance of the agreement demonstrated a significant departure from the overall objectives of the Divorce Act, 1985 (i.e., when the agreement was formed it was in substantial compliance with the Divorce Act) – The evidence of the wife’s circumstances at the time of her support application failed to demonstrate that the separation agreement should not continue to govern the parties’ post-divorce obligations toward each other – See paragraphs 92 to 106.
Cases Noticed:
Pelech v. Pelech, [1987] 1 S.C.R. 801; 76 N.R. 81, refd to. [paras. 1, 108].
Richardson v. Richardson, [1987] 1 S.C.R. 857; 77 N.R. 1; 22 O.A.C. 1, refd to. [paras. 1, 108].
Caron v. Caron, [1987] 1 S.C.R. 892; 75 N.R. 36; 2 Y.R. 246, refd to. [paras. 1, 108].
Thibaudeau v. Minister of National Revenue, [1995] 2 S.C.R. 627; 182 N.R. 1, refd to. [para. 12].
R. v. R.D.S., [1997] 3 S.C.R. 484; 218 N.R. 1; 161 N.S.R.(2d) 241; 477 A.P.R. 241, refd to. [para. 26].
Committee for Justice and Liberty Foundation et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115, refd to. [para. 26].
Moge v. Moge, [1992] 3 S.C.R. 813; 145 N.R. 1; 81 Man.R.(2d) 161; 30 W.A.C. 161, refd to. [paras. 28, 147].
Bracklow v. Bracklow, [1999] 1 S.C.R. 420; 236 N.R. 79; 120 B.C.A.C. 211; 196 W.A.C. 211, refd to. [paras. 28, 147].
Corkum v. Corkum (1988), 14 R.F.L.(3d) 275 (Ont. H.C.), refd to. [paras. 33, 189].
L.G. v. G.B., [1995] 3 S.C.R. 370; 186 N.R. 201, refd to. [paras. 37, 149].
Willick v. Willick, [1994] 3 S.C.R. 670; 173 N.R. 321; 125 Sask.R. 81; 81 W.A.C. 81, refd to. [paras. 37, 145].
Santosuosso v. Santosuosso (1997), 97 O.A.C. 42; 32 O.R.(3d) 143 (Div. Ct.), refd to. [paras. 48, 166].
Leopold v. Leopold, [2000] O.T.C. 868; 12 R.F.L.(5th) 118; 51 O.R.(3d) 275 (Sup. Ct.), refd to. [paras. 74, 176].
Boston v. Boston, [2001] 2 S.C.R. 413; 271 N.R. 248; 149 O.A.C. 50, refd to. [para. 94].
Messier v. Delage, [1983] 2 S.C.R. 401; 50 N.R. 16, refd to. [para. 159].
Wilkinson v. Wilkinson (1998), 233 A.R. 131; 43 R.F.L.(4th) 258 (Q.B.), refd to. [para. 169].
Droit de la famille – 1404, [1991] R.J.Q. 1561 (C.A.), refd to. [para. 171].
Droit de la famille – 1567, [1992] R.J.Q. 931 (C.A.), refd to. [para. 171].
Droit de la famille – 1688, [1992] R.J.Q. 2797 (C.A.), refd to. [para. 171].
Droit de la famille – 2249, [1995] R.J.Q. 2066 (C.A.), refd to. [para. 171].
Droit de la famille – 2325, [1996] R.J.Q. 34 (C.A.), refd to. [para. 171].
Droit de la famille – 2537, [1996] R.D.F. 735 (C.A.), refd to. [para. 171].
D.V. v. J.A.F., [2002] R.J.Q. 1309 (C.A.), refd to. [para. 171].
Walsh v. Bona (2002), 297 N.R. 203; 210 N.S.R.(2d) 273; 659 A.P.R. 273 (S.C.C.), refd to. [para. 202].
Nova Scotia (Attorney General) v. Walsh – see Walsh v. Bona.
Mundinger v. Mundinger (1968), 3 D.L.R.(3d) 338 (Ont. C.A.), affd. (1970), 14 D.L.R.(3d) 256 (S.C.C.), refd to. [para. 208].
Champagne v. Champagne, [2001] O.T.C. Uned. 681 (Sup. Ct.), refd to. [para. 224].
Statutes Noticed:
Divorce Act, R.S.C. 1970, c. D-8, sect. 11 [para. 20].
Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, sect. 9(2), sect. 15.2(1), sect. 15.2(4), sect. 15.2(6), sect. 17(1), sect. 17(4.1), sect. 17(7) [para. 20].
Authors and Works Noticed:
Bailey, Martha J., Case Comment: Pelech, Caron, and Richardson (1989-90), 3 C.J.W.L. 615, generally [para. 161]; pp. 616 [para. 215]; 624 [para. 32]; 633 [para. 198].
Bala, Nicholas, and Chapman, Kirsten, Separation Agreements & Contract Law: From the Trilogy to Miglin, in Child & Spousal Support Revisited (2002), pp. 1-2 [para. 206]; 1-3 [para. 217]; 1-4 [para. 239]; 1-7, 1-8 [para. 208]; 1-9 [para. 217]; 1-13 to 1-20 [para. 181]; 1-26, 1-27 [para. 175]; 1-32 to 1-35 [para. 209]; 1-35 [para. 217]; 1-37 [para. 224]; 1-41 [paras. 239, 240]; 1-42 [para. 240]; 1-43 [para. 241].
Bala, Nicholas, Domestic Contracts in Ontario and the Supreme Court Trilogy: “A Deal is a Deal” (1988), 13 Queen’s L.J. 1, generally [para. 161]; p. 61 [para. 241].
Belley, Jean-Guy, Le contrat entre droit, économie et société: Étude sociojuridique des achats d’Alcan au Saguenay-Lac-Saint-Jean (1998), generally [para. 181].
Durnford, John W., and Toope, Stephen J., Spousal Support in Family Law and Alimony in the Law of Taxation (1994), 42 Can. Tax J. 1, p. 18 [para. 160].
Friedman, Lawrence M., American Law in the 20th Century (2002), p. 385 [para. 181].
Goubau, Dominique, La situation depuis la trilogie Pelech, in Droit de la famille québécois (1985) (2001 Looseleaf Update), vol. 2, pp. 6019 to 6025 [para. 171].
Goubau, Dominique, Une nouvelle ère pour la pension alimentaire entre ex-conjoints au Canada (1993), 72 Can. Bar Rev. 279, generally [para. 171].
Grant, Stephen M., The End of Finality (1997), 27 R.F.L.(4th) 252, generally [para. 175].
Law Society of Upper Canada, Rules of Professional Conduct, rules 2.02(2), 2.02(3) [para. 238].
Martin, Craig, Unequal Shadows: Negotiation Theory and Spousal Support Under Canadian Divorce Law (1998), 56 U.T. Fac. L. Rev. 135, pp. 137 [para. 239]; 139 [para. 213]; 146, 147, 148 [para. 215]; 156 [para. 213].
McLachlin, Beverley, Spousal Support: Is it Fair to Apply New-Style Rules to Old-Style Marriages? (1990), 9 Can. J. Fam. L. 131, generally [paras. 34, 161].
McLeod, James G., Annotation to B.(G.) v. G.(L.) (1995), 15 R.F.L.(4th) 216, pp. 218 [paras. 212, 230]; 219 [paras. 210, 212, 240]; 220 [paras. 232, 235].
McLeod, James G., Annotation to Leopold v. Leopold (2000), 12 R.F.L.(5th) 120, pp. 124, 125 [para. 179].
Menear, Mike, Miglin v. Miglin – Judicial Assault on Individual Liberty (2002), 20 Can. Fam. L.Q. 119, generally [para. 206].
Neave, Marcia, Resolving the Dilemma of Difference: A Critique of “The Role of Private Ordering in Family Law” (1994), 44 U.T.L.J. 97, pp. 117 [para. 215]; 122 [para. 214]; 125, 126 [paras. 212, 215].
Payne, Julien D., and Payne, Marilyn A., Canadian Family Law (2001), pp. 215, 216 [para. 169].
Payne, Julien D., and Payne, Marilyn A., Dealing with Family Law: A Canadian Guide (1993), pp. 78 [paras. 74, 211]; 82 [para. 239].
Shaffer, Martha, and Melamed, Daniel S., Separation Agreements Post-Moge, Willick and L.G. v. G.B.: A New Trilogy? (1999), 16 Can. J. Fam. L. 51, generally [para. 169]; pp. 53 [para. 158]; 61 [para. 170]; 66 [para. 175].
Shaffer, Martha, and Rogerson, Carol, Contracting Spousal Support: Thinking Through Miglin, Paper originally presented to the National Family Law Program in Kelowna, B.C. (July 14-18, 2002), pp. 8 [para. 240]; 9 [paras. 56, 240]; 13 [paras. 76, 209, 217]; 14 [paras. 209, 212, 217]; 15 [paras. 209, 213]; 18 [para. 223]; 21 [para. 239]; 22 [para. 225]; 24 [paras. 223, 225]; 25 [para. 228]; 29 [paras. 217, 232]; 33 [para. 225].
Stotland, Gerald, and Siminovitch, Margo R., Renunciation to Spousal Support – The Great Escape (1996), 14 Can. Fam. L.Q. 159, pp. 165 [para. 215]; 166 [paras. 212, 215]; 168 [para. 215].
Young, Alison Harvison, The Changing Family, Rights Discourse and the Supreme Court of Canada (2001), 80 Can. Bar Rev. 749, pp. 781, 782 [para. 36].
Counsel:
Nicole Tellier and Kelly D. Jordan, for the appellant;
Philip M. Epstein, Q.C., Aaron M. Franks and Ilana I. Zylberman, for the respondent.
Solicitors of Record:
Nicole Tellier and Watson Jordan, Toronto, Ontario, for the appellant;
Epstein Cole LLP, Toronto, Ontario, for the respondent.
This appeal was heard on October 29, 2002, before McLachlin, C.J.C., Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps, JJ., of the Supreme Court of Canada. The following decision of the court was delivered in both official languages on April 17, 2003, when the following opinions were filed:
Bastarache and Arbour, JJ. (McLachlin, C.J.C., Gonthier, Iacobucci, Major and Binnie, JJ., concurring) – see paragraphs 1 to 107;
LeBel, J., dissenting (Deschamps, J., concurring) – see paragraphs 108 to 256.
