The Miglin test has been held to apply to BC Spousal support cases and just recently in the BC Family Law case of Hartshorne, a Miglin like test has been held to be applicable to BC property agreement cases as well.
Interestingly, the Miglin test has been applied to cases involving disputes and variations of custody and access agreements entered into by separated parents which come before the Court in the first instance.
The parties had signed minutes of settlement that established a shared parenting regime for two children, aged 9 and 12. The agreement was not incorporated into a Court Order.
Counsel in Alberta for the mother properly argued Section 17 of the Divorce Act was inapplicable saying a material change of circumstances test was not applicable to Separation Agreements. Counsel should have been warned “be careful what you ask for or you just might get it!”.
The Court held Miglin applied to variations of custody agreements when partners came to court in the first instance, as follows:
“41 I have concluded that the Miglin test does apply to the variation of custody agreements. At both stages of the Miglin test the court is directed to examine the agreement to see if it is consistent with the overall objectives and values in the Act. This enables the court to deal directly with the best interests of the children who are not parties to the agreement, while still giving meaning to the important value of autonomy of the parents. If the agreement is not consistent with the best interests of the children, for example because it gives the interests of the parents priority over those of the children, it will fail at both levels of the Miglin test. Further, under the second part of the Miglin test the court is directed to examine whether the agreement is still in accordance with those fundamental values in light of changing circumstances. This enables the court to ensure that the children are not locked into an agreed custody arrangement that has become contrary to their best interests. There is an ability to moderate the values of autonomy and finality to the extent necessary to accommodate changed circumstances, while still encouraging settlement. I conclude that Miglin sets out a test capable of dealing with applications to vary custody agreements.
42 In the context of an application to vary a custody agreement, the Miglin test can be summarized as follows:
1. At the first stage
a) were there any circumstances surrounding the negotiation of the agreement that would cause the court to discount it?
b) does the substance of the agreement substantially comply with the best interests of the children? A wide range of custody arrangements would satisfy this part of the test, and the court should be aware that the parents are usually in the best position to decide what is in the best interests of the children, and the court should remember the importance of them settling their own disputes.
2. At the second stage
a) does the agreement still reflect the intentions of the parties? Have any unforseen changes in circumstances undermined the parties’ agreement?
b) given such changes, is the agreement still in substantial compliance with the best interests of the children? Even if some change is warranted, the agreement can still give some indication of the expectations of the parties about the best interests of the children.
The Court held this test allowed the Court to respect the ability of parents to enter into Settlement Agreements on custody while protecting the best interests of the children.
The Court held that the Agreement in the first stage analysis under Miglin was consistent with the overall values and objectives of the Act.
In applying the second test, the Court held the mother’s application to be allowed to move from Canmore, Alberta to Medicine Hat was dismissed and the agreement which had an implied term that the parties who had shared custody should remain in proximity to each other was enforced.
The Court’s decision emphasized the importance of upholding fairly negotiated agreements on custody.
Counsel settling custody cases should be aware that a Separation Agreement that will be subject to the Miglin test for variation will in most cases put the parties to a higher standard for variation than when parties try to vary an Order after a hearing or a trial which would be varied on the basis of a “material change in circumstances” test.
Compare the Hearn decision from Alberta with our homegrown decision of Madame Justice Martinson in L.E.G. v. A.G. 2002 BCSC 970.
In this case, the parties signed a 1999 Separation Agreement for shared custody on a two week basis. The mother applied to vary the agreement to a one week visitation saying the two week rotation was not benefiting the children and wanted to change the equal decision making process mandated by the agreement.
While the wife argued the agreement was to be an interim agreement rather than a permanent agreement, the Court disagreed.
The Court held Gordon v. Goertz did not apply to Separation Agreements:
“47 Counsel were unable to find any cases dealing specifically with the legal effect of such an agreement. I have found useful the general analysis in Gordon v. Goertz, above, and Nunweiler v. Nunweiler (2000), 78 B.C.L.R. (3d) 1 (C.A.).
48 The agreement was not confirmed by a court order and as a result the variation provisions of the Divorce Act do not apply. Therefore, there is no requirement that there be a material change in circumstances before the agreement can be changed. However, the decision of the parties as to what is in the best interests of their children, as reflected in a written agreement, can be an important consideration in deciding what is in the best interests of children.”
Just as in Miglin the Court gave great deference to the wishes of the parents:
‚Äú85 The arguments raised by the mother are valid arguments. However, the benefits to each of the children she says would follow from having childcare in her home do not, in my view, outweigh the benefits to each of the children of continuing with the present childcare arrangement. In reaching this decision on the question of childcare, I have given significant weight to the decision made by the parties at the time of separation. As I have already said, the parents felt at that time that the arrangement was in the children’s best interests.‚Äù
The Court noted the shared custody arrangement was in place for 2.5 years and that the children benefited by spending substantial time in the matrimonial home. The two week rotation was altered to be a one week rotation, and the court actually altered the shared decision making process the parties had agreed to. Presumably, Martinson, J. applied a modified version of the second step test in Miglin and felt the agreement no longer was in substantial compliance with the best interest tests of Section 16 of the Divorce Act.
There is no doubt that Judge Martinson in effect applied a prototype Miglin test to a custody agreement well in advance of the SCC deciding Miglin. She held the agreement should be given great deference by the courts.
While counsel in the past may have thought an agreement was merely a factor for the Court to consider, it seems Miglin has made Separation Agreements on custody and access and even consent orders on custody and access more bullet proof than a Court Order made after a trial! A “material change in circumstances” will not be enough to displace a fairly negotiated Separation Agreement that meets the overall values and objectives of Section 16 of the Divorce Act and Part 2 of the Family Relations Act.
Counsel should consider that while Section 15.2(4) states the Court can when making a support Order consider:
(c) any order, agreement or arrangement relating to support of either spouse,
Section 16(8) of the Divorce Act says the Court shall consider only the best interests of the child of the marriage as determined by reference to the condition, means, ne
eds, and other circumstances of the child.
The impact of Miglin has forever changed the family law landscape on the issues of support, property division and child custody. Senior counsel will note the pendulum is swinging away from broad judicial discretion to alter family law contracts so, arguably, one of near slavish adherence to them.
Guess who clients will need to get relief from when they make a bad deal – their lawyers!