They are Agreements Nonetheless, Case Comment on Miglin v. Miglin, 2003 SCC 24

Canadian Journal of Family Law, Vol. 20, pp. 197-228, 2003

32 Pages Posted: 22 Aug 2010

See all articles by Carol Rogerson

Carol Rogerson

University of Toronto - Faculty of Law

Date Written: 2003

Abstract

In April 2003 the Supreme Court of Canada released its much-anticipated decision in Miglin v. Miglin, a case in which a divorced wife sought spousal support under the Divorce Act several years after signing a separation agreement in which she had released all claims to such. In Miglin the Supreme Court of Canada was finally faced with the issue of how to resolve the on-going controversy about the weight to be given to spousal support agreements. The majority reasons speak in two voices: one emphasizing fairness concerns and the unique context in which spousal support agreements are negotiated, the other emphasizing values of certainty, finality, and autonomy. In the end, the latter voice speaks louder and conveys the dominant message of the judgment. The judgment is all in all a disappointing one. Although both counsel, experienced family lawyers, offered relatively straight-forward tests, the Supreme Court of Canada chose to set out on its own, crafting a contextual balancing test which is complex and fact-driven. At best Miglin will introduce several years of confusion and uncertainty into the law as courts and lawyers struggle to give concrete meaning to each of the various steps of the new test. While Miglin is most obviously a contracts case, the decision also has an important subtext about spousal support. Rather than assuming responsibility for providing more guidance as to appropriate spousal support outcomes, the Court has chosen to evade the difficult issues in this area of law by relying on contracts to provide the answers. It is possible that Miglin will result in a decline in the use of releases and time limits in spousal support agreements as lawyers realize that these will now be difficult to override.

Keywords: Miglin, spousal support, separation agreement, fairness, finality, balancing test, contracts

Suggested Citation

Rogerson, Carol, They are Agreements Nonetheless, Case Comment on Miglin v. Miglin, 2003 SCC 24 (2003). Canadian Journal of Family Law, Vol. 20, pp. 197-228, 2003, Available at SSRN: https://ssrn.com/abstract=1662247

Carol Rogerson (Contact Author)

University of Toronto - Faculty of Law ( email )

78 and 84 Queen's Park
Toronto, Ontario M5S 2C5
Canada

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