Miglin v. Miglin, (2003) 302 N.R. 201 (SCC)

• Judge: McLachlin, C.J.C., Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps, JJ.
• Court: Supreme Court of Canada
• Case Date: Tuesday October 29, 2002
• Jurisdiction: Canada (Federal)
• Citations: (2003), 302 N.R. 201 (SCC);2003 SCC 24;171 OAC 201;[2003] SCJ No 21 (QL);122 ACWS (3d) 101;302 NR 201;[2003] 1 SCR 303;34 RFL (5th) 255;JE 2003-790;[2003] CarswellOnt 1374;66 OR (3d) 736;[2003] ACS no 21;224 DLR (4th) 193;AZ-50171042;EYB 2003-40012

Miglin v. Miglin (2003), 302 N.R. 201 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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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.