“The analysis in Miglin was borne out of the spousal support context and the relevant provisions, objectives and structure of the Divorce Act. As our jurisprudence has since recognized, these origins limit the applicability of the Miglin framework in other legislative contexts.
In Hartshorne v. Hartshorne, 2004 SCC 22, [2004] 1 S.C.R. 550, Bastarache J., writing for a majority of the Court, declined to import the Miglin framework to interpret s. 65(1) of the British Columbia Family Relations Act, R.S.B.C. 1996, c. 128, which allowed a court to set aside a presumptively enforceable marriage agreement where division of property would be unfair at the time of distribution (paras. 13 and 42). Bastarache J. held that to adopt “Miglin without qualification would distort the analytical structure” of the B.C. statute (para. 42). In D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231, in considering four cases about retroactive awards for child support, the Court again did not import a Miglin analysis in assessing whether to vary a prior child support agreement between the parties, noting that two of the appeals fell under the Divorce Act, while the other two fell under Alberta’s provincial regime (paras. 50-53). Rather, the Court had regard to the specific scheme set out in the legislation (see paras. 54 and 75-79). Finally, in L.M.P. v. L.S., 2011 SCC 64, [2011] 3 S.C.R. 775, this Court declined to apply the Miglin framework to interpret s. 17 of the Divorce Act, holding that the different language employed by Parliament in drafting ss. 15(2) and 17 warranted a different approach (paras. 25 and 28).
Adding to comments from this Court, scholars have also questioned the extension of Miglin’s second stage of analysis to the family property division context. Spousal support is primarily a prospective and ongoing obligation that looks to future value, and is in part based on means and need; “[t]he default assumption is that, spousal support is open to modification in response to changing circumstances” (C. Rogerson, “Spousal Support Agreements and the Legacy of Miglin” (2012), 31 C.F.L.Q. 13, at p. 34; see also Miglin, at para. 209, per LeBel J., dissenting, but not on this point; Droit de la famille — 152477, 2015 QCCA 1618, at para. 16 (CanLII); R. Leckey, “A Common Law of the Family? Reflections on Rick v. Brandsema” (2009), 25 Can. J. Fam. L. 257, at p. 280). The division of family property, by contrast, is a chiefly retrospective exercise: it takes stock of property brought into and acquired during the spousal relationship as past contributions giving rise to a property entitlement (Leckey (2009), at p. 280). The relevance of post-execution changes in circumstances is far less obvious to separation agreements dealing with property division, as opposed to spousal support. This subject matter distinction has similarly been recognized by this Court (see Miglin, at para. 76), and partly explains why we have never fully extended the Miglin framework to the division of family property (see Rick v. Brandsema, 2009 SCC 10, [2009] 1 S.C.R. 295, at para. 39; Hartshorne, at para. 42).
It is clear from this review that the Miglin framework is not a panacea for all domestic contracts. Rather, the analysis to be undertaken in determining whether to give weight to a domestic contract must be determined by reference to the distinctive nature of the underlying statutory scheme. This is especially so given our country’s constitutional makeup: spousal support in the context of a divorce is dealt with under the federal Divorce Act, whereas, family property division, for instance, falls within the province’s jurisdiction over property and civil rights. To automatically import a structured analysis grounded in federal legislation to interpret a discretionary provision in a provincial statute risks undermining the province’s legislative authority (D.B.S., at para. 55; see also M. Bailey, “Limits on Autonomy”, in B. Atkin, ed., The International Survey of Family Law (2010), 95, at p. 97; Leckey (2009), at p. 287).”