Miglin v. Miglin
Encyclopedia
Miglin v. Miglin, [2003] 1 S.C.R. 303, 2003 SCC 24, is the leading case decided by the Supreme Court of Canada
on the use separation agreements. The Court established a two-stage test to determine whether a separation
agreement can be relied upon.
Prior to the Miglin decision, the leading cases on separation agreements was the Pelech Trilogy. In those cases, it was held that a separation agreement is binding and a party can only apply for spousal support
where there has been a radical and unforeseeable change in circumstances which has a causal connection to the marriage. The Miglin decision rejected this strict test.
In their analysis they set out the test for re-opening a separation agreement. Test has two phases. First, the court considers the circumstances in which the initial agreement was made: whether the agreement was negotiated fairly and whether the agreement conformed with the objectives of the Divorce Act. Second, the court must consider the current circumstances: whether the agreement still reflects the intentions of the parties and whether there has been significant change in circumstances such that it was reasonably unforeseeable at the time of formation.
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
on the use separation agreements. The Court established a two-stage test to determine whether a separation
Legal separation
Legal separation is a legal process by which a married couple may formalize a de facto separation while remaining legally married. A legal separation is granted in the form of a court order, which can be in the form of a legally binding consent decree...
agreement can be relied upon.
Prior to the Miglin decision, the leading cases on separation agreements was the Pelech Trilogy. In those cases, it was held that a separation agreement is binding and a party can only apply for spousal support
Alimony
Alimony is a U.S. term denoting a legal obligation to provide financial support to one's spouse from the other spouse after marital separation or from the ex-spouse upon divorce...
where there has been a radical and unforeseeable change in circumstances which has a causal connection to the marriage. The Miglin decision rejected this strict test.
Opinion of the Court
Justices Bastarache and Arbour, writing for the majority, allowed the appeal.In their analysis they set out the test for re-opening a separation agreement. Test has two phases. First, the court considers the circumstances in which the initial agreement was made: whether the agreement was negotiated fairly and whether the agreement conformed with the objectives of the Divorce Act. Second, the court must consider the current circumstances: whether the agreement still reflects the intentions of the parties and whether there has been significant change in circumstances such that it was reasonably unforeseeable at the time of formation.