What are the principles of consistency, autonomy, finality and the value of settlement?

These principles are not applied with full vigour in the family law area for several reasons. Firstly, family law disputes often manifest themselves over an extended period of time. The principle of finality must be tempered by a need to allow for changing circumstances, especially changes that could not have been anticipated when the initial decision was made. Secondly, the parties in a family dispute may be emotionally vulnerable, and there may be a significant power imbalance at the time that the agreement is made. For these reasons the courts are more prone to intervene in family law decisions, notwithstanding the principle of autonomy. Finally, family law decisions more frequently engage the rights of third parties, more specifically the rights of children who are seldom represented in court and are never the parties to settlement agreements. The tests in Miglin, Gordon v. Goertz and s. 17 of the Divorce Act attempt to balance these factors with the principles of consistency, autonomy, finality and the value of settlements.

There are two possible models for reconciling these competing values in the case of settlement agreements over custody. One is the “material change of circumstances test” set out in s. 17, and explained in Gordon v. Goertz. Once the threshold of a material change is reached, the whole issue is opened up. Finality, certainty and autonomy yield to changing circumstances. The other model is the two-stage test in Miglin. First the circumstances in which the agreement was made are examined, along with the broad policy values underlying family law. Then the agreement is measured against the present circumstances, to see if it still reflects the intent of the parties, and if it is still consistent with basic family law values. Under this test a premium is placed on autonomy and the need to protect settlement agreements as a way of achieving finality. Changing circumstances play a similar but lesser role under the second part of the test. Which test applies to an application to vary an agreement, not incorporated in a court order, over custody of and access to children? The choice between the Miglin test and the Gordon v. Goertz test (or possibly an entirely different test) is the key issue in this case.