The Legacy of Miglin: A Practitioner's Response
| Author | H. Hunter Phillips |
| Pages | 135-152 |
The
Legacy
of
Miglin:
A
Practitioner's
Response
H.
Hunter
Phillips"
A.
INTRODUCTION
This paper
is
intended
to be a
practitioner's
commentary
on the
legacy
of
the
Supreme Court
of
Canada's
decision
in
Miglin
v.
Miglin.1
It is not in-
tended
to
provide
an
in-depth analysis
of
that
decision,
nor is it
intended
to
provide
an
exhaustive review
of
what
the
courts throughout Canada
have done subsequent
to
that decision.
In
this paper
I
will summarize
the
rules
set out by the
Supreme Court
regarding
the
weight
to be
given
to
domestic contracts that contain
a
waiver
or
limitation
of the
right
to
spousal
support,
when considering
an
application
for
spousal
support under section 15.2
of the
Divorce
Act.2
I
will then deal
briefly
with
Hartshorne
v.
Hartshorne?
in
which case
the
Supreme Court applied
the
principles
of
Miglin,
with
significant
vari-
ations,
to a
marriage contract that limited property rights.
A
brief
review
of
the
post-Miglin
Ontario Court
of
Appeal decisions will
follow.
Finally,
I
will address
the
lessons practitioners ought
to be
taking
from
Miglin
and the
subsequent decisions when
it
comes
to
advising cli-
ents
and
drafting
agreements.
*
H.
Hunter Phillips
is an
associate with MacKinnon
&
Phillips
in
Ottawa.
1
Miglin
v.
Miglin
(2003),
34
R.F.L.
(5th)
255
(S.C.C.)
[Miglin].
2
Divorce
Act
(Canada),
R.S.C. 1985,
c. 3
(and
Supp.)
as
amended.
3
Hartshorne
v.
Hartshorne
(2004),
47
R.F.L.
(5th)
5
(S.C.C.)
[Hartshorne].
*35
136 H.
HUNTER PHILLIPS
B.
THE
SUPREME
COURT'S
DECISION:
A
BRIEF
RECAP
In
Miglin
v.
Miglin*
the
Supreme Court
of
Canada laid
out
rules
to be ap-
plied
by the
courts
in
determining
the
weight
to be
given, under section
15.2(4)
of the
Divorce
Act,
to an
order
or
agreement that purports
to
waive
or
limit spousal support when asked
to
vary
or set
aside
the
provisions
of
such
an
agreement. Section
15.2(4)
requires
the
court,
when making
an
order
for
spousal support,
to
consider
a
variety
of
factors,
including
"the condition, means, needs
and
other circumstances
of
each
spouse,"
the
length
of
cohabitation,
the
functions performed
by the
spouses
dur-
ing
cohabitation,
and
"any
order,
agreement
or
arrangement relating
to
support
of
either
spouse."
The
Court
set out a
two-stage approach
to the
exercise
of the
court's
discretion.
The
first
stage
is
described
as
looking
at"...
the
circumstances
in
which
the
agreement
was
negotiated
and
executed
to
determine
whether there
is any
reasons
to
discount
it."5
This stage really involves
two
parts:
i.
The
court
is to
look
at the
circumstances under which
the
agreement
was
negotiated.
The
court does
not
attempt
to
list
the
factors
that
a
court
should consider
in
this, stating only that,
...
the
court should
be
alive
to the
conditions
of the
parties, includ-
ing
whether there were
any
circumstances
of
oppression,
pressure,
or
other vulnerabilities, taking into account
all of the
circumstances,
in-
cluding those
set out in s.
15.2(4X0)
and
(b)
and the
conditions under
which
the
negotiations were
held,
such
as
their duration
and
whether
there
was
professional
assistance.6
In
setting
out
this
part,
the
court makes three points:
a)
The
courts need
not
necessarily look
for
unconscionability.
b)
The
court should
not
presume
an
imbalance
of
power
in the re-
lationship,
nor
should
it
presume that
the
stronger party took
advantage
of any
vulnerability
of the
other party.
c)
"The mere presence
of
vulnerabilities will not,
in and of
itself,
justify
the
court's
intervention."7
4
Miglin,
supra
note
i.
5
Ibid,
at
para.
80.
6
Ibid,
at
para.
81.
7
Ibid,
at
para.
82.
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