Goldwater, Dube

The Supreme Court of Canada has rendered its decision in Miglin vs. Miglin about the claim of an ex-wife to overturn a prior agreement with her ex-husband that set a term to her alimony. Despite prior favourable rulings in Bracklow and Moge that favoured recognizing long-term spousal support, the Supreme Court took a different approach in Miglin, in light of the freely concluded agreement between the spouses. Even though the 1986 Divorce Act gives the Court more power than the previous law, the Court considered it important to find a proper balance between consensus and finality on the one hand, and sensitivity to the unique concerns that arise in the post-divorce context if the agreement does not meet the needs of the wife.

The Supreme Court applied a two stage test: first, ws there oppression or pressure or other vulnerability in negotiating the agreement? Second, is the agreement in substantial compliance with the Divorce Act’s objectives? The way the test is set out sets the hurdle rather high to be able to overturn an agreement, except in perhaps the most extreme circumstances.

Since this Supreme Court judgment, no judgment of the Quebec Court of Appeal has overturned a single divorce agreement.

This is a great outcome for husbands, because it is the financial agreements that are becoming practically unreviewable, whereas custody is almost always reviewable; it is a lousy outcome for wives, who often sign agreements in rather dubious circumstances. Caution is certainly now the byword before signing ANY agreement!