Contracting Spousal Support: Thinking through Miglin

Abstract

The Ontario Court of Appeal decision in Miglin v. Miglin has been the topic of much discussion. The Court of Appeal held that courts could override separation agreements where there had been a material change in circumstances. In this article, we seek to "think through" the Miglin issue, namely the threshold upon which courts should override the spousal support provisions of valid separation agreements. The central difficulty, in our view, of abandoning the Pelech trilogy standard is determining what should replace it. We begin our discussion of the Miglin issue with an overview of the Miglin case itself. We then attempt to unravel three important strands of the complex debate that Miglin has generated: 1) why departing from the Pelech trilogy elicits strong responses, 2) the problems that arise in contracting about spousal support, and 3) difficult issues that further complicate the task of crafting an override standard, specifically the problems of shifting norms and inconsistent statutory standards. In the final part of the article, we turn to the challenge of crafting an appropriate override standard. In our view, a standard that assesses the substantive fairness of the agreement, either at the time it was entered into or at the time at which the application to overrides is brought, represents the most promising approach.

Keywords: Miglin, Ontario Court of Appeal, spousal support, override, material change, fairness