Ignore the Spin: That Divorce Settlement was Unfair

Sunday, May 27, 2001

Michelle Landsberg, Sunday Star, May 27, 2001

It never fails to amaze me how the media can mislead the public , sometimes with a cunningly phrased headline that can skew the whole meaning of a news story, and sometimes by framing stories in a way that leaves out crucial details.

Recently, I head from several men who bemoaned the fact that now, in light of an Ontario Appeal Court decision, "divorce is never over", and "no separation agreement will ever be final".

These guys have been snowed. They've chosen to believe the conservative media's ridiculous misogynist spin on a straightforward case ... a case, by the way, that, according to an eminent family law scholar and law school dean, "is no great departure from previous rulings".

You'd never know that, however, from the crazed headlines in the conservative press. The headline over a Globe and Mail column advised: "Hey guys, let death do you part", which almost hints at a femicidal solution, and the National Post blazed across its front page: "Divorce Deals Never Final: Court".

Here are the facts, as spelled out in the judgement of the Ontario Appeal Court, written by Mme. Justice Rosalie Abella and unanimously agreed to by Chief Justice Roy McMurtry and Mr. Justice Michael Moldaver.

Eric and Linda Miglin married in 1979, bought Killarney Lodge in northern Ontario for more than $1 million, and proceeded to have four children. Linda earned $80,000 a year, or half the profits from the lodge, for overseeing administration and housekeeping, while Eric ran the business side.

Linda was the children's primary caregiver. After the lodge closed each season, she took them back to Toronto while Eric took an extended vacation on his own.

When the couple separated in '93, they worked out three agreements: one to cover shared parenting, another for child support ($60,000 a year) and a third and crucial one promising a $15,000 a year consulting contract for Linda. Linda swapped her share of the lodge for his share of the family home (both worth about $250,000) . Note that the consulting agreement --- unlike most business contracts --- was for a fixed five-year term, subject to cost-of-living increases, and renewable after five years.

Linda also signed a specific clause agreeing "at no time, now or in the future ...under any circumstances.." to ask for spousal support.

All went fine until Linda moved to Thornhill and converted to Judaism, over Eric's objections. Eric cancelled the $15,000 consulting agreement . In other words, he was the first to breach this supposedly sacred agreement. In the words of the trial judge, Eric Miglin became "aggressive.. .dominating... often acted in an outlandish fashion to her and the children ...Almost every day saw him seated behind one of them in the public school classroom ...it appeared his focus on the children became obsessive."

The judge went on to describe an increasingly hostile relationship due to Miglin's sense that "he was no longer in control... He demanded full-time involvement with the children to the exclusion of their mother. He intensified the tension....His scheme (of altered custodial arrangements) had been developed solely to hurt the mother ... and to reduce child support payable by him... He confronted his wife on every occasion; he was determined to make her life unhappy."

In '98, Linda Miglin sued for sole custody and spousal support. The judge awarded her monthly spousal support of $4,400 for five years and monthly child support of $3000. (About the same total, you'll notice, as the first arrangement, if you include the $15,000 consulting fee). Both parties agreed to joint custody.

Eric Miglin appealed against the order to pay spousal support, and claimed that the trial judge had been unfair.

The key bone of contention for the Ontario Appeal Court was the question of altering the original separation agreement, in which Linda Miglin renounced any claim to spousal suuport. Can such agreements be undone by courts?

Yes. But only with caution and restraint, according to Abella's judgement. Writing for the court, Abella stressed that alteration of agreements must be based on scrupulous regard for standards of fairness established by the Supreme Court. Judges may intervene when agreements result in "unconscionable circumstances", according to both provincial and federal family law.

To understand just what had changed in family law, I spoke to Alison Harvison Young, professor of family law and Dean of Queen's University Law School. She explained how Canadian courts had gradually moved away from the idea of a completely clean break at the time of divorce, realizing the heavy economic price paid by women who stay home to raise children. "Statistically, after divorce the ex-husbands do better financially while the ex-wives do much worse," Young said.

That was certainly true of Linda Miglin who, despite the so-called "shared parenting" scheme, had, the court ruled, "overwhelming responsibility" for the four children and was hampered in her efforts to earn money.

Abella also concluded, in view of expert evidence, that the so-called consulting deal was, in fact, a "thinly disguised spousal support" agreement, crafted to "create a more advantageous tax result for Mr. Miglin". Otherwise, it would not have set a fixed annual amount with an annual cost-of-living increase.

In other words: if you think you can get away with an unfair separation agreement that results in economic hardship for one party, you're flying in the face of justice and the Divorce Act, and the courts are entitled to intervene. If you don't want an agreement to be changed, make it fair to begin with.

This decision is hardly the end of all agreements or the introduction of "lifelong divorce", as the headlines obviously persuaded some men to believe. It's a shame that, in feeding the backlash, the right-wing media stir up so much misunderstanding and social rancour.