The Legacy of Miglin: Are Spousal Support Agreements Final?
| Author | Carol Rogerson |
| Pages | 119-134 |
The
Legacy
of
Miglin:
Are
Spousal
Support
Agreements
Final?
Carol
Rogersori
A.
APPELLATE DECISIONS CITING MIGLIN
Table
Key:
H =
Husband
W
-
Wife
ILA
=
Independent legal advice
Assume
H
paying support
unless
stated otherwise
t
Summaries cited
to
Carswell
Carol
Rogerson
is a
Professor
of Law at
University
of
Toronto
Law
School. This
chart
was
prepared with
the
assistance
of
Marnelle Dragila, articling student,
Epstein
Cole LLP.
119
i)
Agreement
Set
Aside
on
Basis
of
Miglin
Cases
Facts
Decision
Ambler
v.
Ambler
(2004),
5
R.F.L
(6th)
229,2004
CarswellBC
2255
(C.A.),
Hall,
Mackenzie, Smith
JJ.A.
At
Stage
lorz?
BC
Court
of
Appeal
17-year
traditional
marriage.
2
children. Separation
agreement
(incorporated
into
consent order)
provided
4-year
time-limited
support,
a
lump
sum,
and a
spousal support release. Both parties
had
ILA.
H
lost
his job 6
months after order.
He
applied
to
vary
monthly
support (paid lump sum). Trial judge
reduced support.
W
unable
to find
full-time
work
and
had
limited
education.
W
successfully
applied
to
vary
:
(continue) support beyond
4-year
time
limit.
Miglin
\
not
released
at
time
of
trial
decision.
H
appealed,
;
claiming
W had
failed
to
meet Miglin threshold
and
i
that
there
was no
evidentiary
foundation
to find W's
;
economic hardship
was
unanticipated
at the
time
of
!
the
consent order.
N.(D.K.)
v.
O.(M.J.)
(2003),
41
R.F.L.
(5th)
142,2003
CarswellBC
2290
(C.A.),
Ryan,
Oppal,
LowryJJ.A.
Appeal dismissed.
The
court
noted
that Miglin dealt
with
an
application
under
s.
15.2,
not s.
17(10),
although
in
Miglin,
the
court emphasized
that
the
"reasonable
anticipation" test applied
to
both
provisions (para. 10).
W's
present circumstances (inability
to
become self-
sufficient because
of
inability
to find
full-time
work
despite reasonable efforts) were
not
within
reason-
able
contemplation
of the
parties
at the
time
of the
consent order.
Stage
2
i8-year
traditional marriage.
2
children. Separation
agreement under which
W
released
spousal support.
Both parties
had
ILA. Agreement provided that
if W
could
not
secure
a new
home
with
her
share
of the eq-
uity
from
the
home,
then
H
would provide
his
share
to
W
to
extent needed.
W
sold home
but
waited before
finding new
home.
H
refused
to
provide
his
share
of
equity,
leaving
W
unable
to
reopen daycare
business.
Appeal dismissed. Agreement failed stage
i
Miglin
analysis
because
it was not in
substantial compli-
ance
with
the
Divorce
Act at the
time
of
execution.
In
BC,
once
an
agreement
is
found
to be
unfair
be-
cause
it
fails
to
address
a
spouse's
need
to
become
self-sufficient,
then
(generally),
in the
absence
of a
reapportionment
of
property,
the
agreement
will
not
substantially
comply
with
the
objectives
of the
Stage
i
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