Majority finds safeguards in mediation process mean rule of absolute confidentiality is not required
The exception to settlement privilege outlined in the commercial Union Carbide decision may also apply to family mediation cases, the majority of the Supreme Court of Canada ruled on Friday.
In Association de médiation familiale du Québec v. Bouvier, the majority found that owing to the safeguards in Quebec’s family mediation process -- including a certified and impartial mediator chosen by the parties and a judge who confirms any agreement arising from the mediation – a rule of absolute confidentiality is not required.
The majority also agreed with Quebec’s superior and appellate courts that there was a contract between the two parties based on the ”résumé des ententes” or “summary of mediated agreements” prepared by the mediator and sent to the parties, even though the parties did not sign it or have a formal agreement drawn up.
In Quebec, family mediation by certified mediators is available to married, civil union and common law spouses with or without children, and is subsidized by the provincial government. Separating couples are required to attend at least one mediation session before taking a matter to court.
“As family lawyers, we believe it was very important for the Court to clarify once and for all certain rules concerning the admissibility of evidence in a context where two spouses or de facto spouses reached an agreement following a family mediation process,” said counsel for the respondent, Michel Bouvier.
“From the outset of this file, we were of the view that in certain circumstances, parties who previously participated in family mediation had to be in a position to prove the existence of an agreement reached between them,” said Joanne Biron, Emily Kissel, Michaël Plante and Emmanuelle Gascon of Miller Thomson LLP in an email to Canadian Lawyer.
“The majority’s decision confirms that they have this right.”
Isabelle Bisaillon and Michel Bouvier were common law spouses for more than three years and had two children together. When their relationship ended in 2012 they participated in mediation sessions to determine their children’s care, family home, and compensation for Bisaillon for the time she had taken away from paid work to care for the children. At the end of that process the mediator prepared a summary of mediated agreements, outlining what the pair had agreed to.
In 2014, Bisaillon filed a lawsuit in Quebec Superior Court asking for more money than had been set out in the summary. In response, Bouvier argued that the parties should stick to the terms of the contract agreed to in mediation and set out in the summary. Bisaillon denied the existence of a contract and objected to the summary being admitted into evidence, arguing that it was protected by a rule of absolute confidentiality.
Quebec’s Superior Court rejected Bisaillon’s argument, relying on the Supreme Court’s commercial mediation decision of 2014 in Union Carbide Canada Inc. v. Bombardier Inc. In that case the court acknowledged the confidentiality of the mediation process, but recognized a settlement exception that would allow parties to a settlement to prove it exists. The Superior Court therefore found that Bisaillon and Bouvier had a contract. On appeal, Quebec’s appellate court agreed.
The Association de médiation familiale was granted permission to take Bisaillon’s case to the Supreme Court on her behalf, and was accordingly substituted as the appellant.
In today’s judgment the majority of the Supreme Court found that communications during family mediation sessions may be used to prove existence of settlements between the spouses, and so the summary can be admitted into evidence.
“It is certainly true that confidentiality is necessary in any mediation to allow for frank discussions between the parties in order to encourage settlements,” wrote Justice Nicholas Kasirer in his reasons for the majority, with Chief Justice Richard Wagner and Justices Michael Moldaver, Suzanne Côté, Russell Brown and Malcolm Rowe concurring.
“It is also true that, unlike in the case of civil or commercial mediation, negotiations following the breakdown of a relationship often take place during a period of personal upheaval that may heighten the vulnerability of either spouse,” he continued.
“However, the protection of vulnerable individuals is assured not by absolute confidentiality, but by a set of special norms — some of which are legislated, while others reflect usages in practice or are found in the standard mediation contract — that provide spouses, parents and children with … ‘procedural safeguards’ while at the same time protecting public order …
“Given the significance of the procedural safeguards inherent in family mediation, it is, in my respectful view, an error to insist on the absolute nature of confidentiality. A rule of absolute confidentiality might not only deflect family mediation from its participatory and consensual foundations, but also undermine the parties’ adherence to this process for resolving their dispute, or even to the settlement itself. …
“[C]onfidentiality is above all a means to an end: where spouses resolve their dispute,” Justice Kasirer continued; “this concern must yield, as far as necessary, to that of giving them the proper tools to implement their agreement.”
In reasons that concurred in the result, Justice Andromache Karakatsanis, also writing for Justices Rosalie Abella and Sheilah Martin, disagreed that the Union Carbide exception to settlement privilege applies to communications that occur during family mediation sessions in Quebec.
“In my view, discussions that occur within mediation sessions remain confidential and cannot be disclosed or adduced as evidence unless the parties specifically agree otherwise,” Justice Karakatsanis wrote.
“Rules relating to the confidentiality of settlement negotiations applied in civil and commercial cases cannot simply be transposed to the family law context: doing so undermines both the unique legal approach to family law settlements developed by our courts and the broader objectives of the family mediation regime. …
“The family mediation regime in Quebec requires that the mediation sessions be completely confidential, except where the parties expressly state otherwise.”
Justice Karakatsanis agreed with Justice Kasirer that no binding agreement can be reached during mediation sessions, and that the summary of mediated agreements “is simply the mediator’s understanding of the potential basis for agreement at the conclusion of the mediation sessions.”
In finding, though, that the summary of mediated agreements was not admissible as evidence, she would have sustained Bisaillon’s objection to its admissibility “to prove the terms of a contract formed after mediation sessions.”
Given the limited record before the Supreme Court, however, Justice Karakatsanis said she found it difficult to assess whether the evidence would otherwise have been sufficient to justify the trial judge’s conclusion regarding the existence of a contract, and was therefore “not persuaded that the disposition appealed from should be overturned.”
Anne-France Goldwater, senior partner at Goldwater, Dubé family law firm in Montreal, notes the gender split in the decision -- the three minority justices are women -- but “what's funny in the six to three [divide] of this judgment [is] they're in the same place; it’s this very thorny sliver of an issue right in the middle, where they differ, but they differ very strongly,” on whether discussions occurring within mediation sessions can be presented as evidence.
That said, Goldwater said she doesn’t read the majority judgement “as a blanket licence to produce [the summary of mediation agreements] in court in any situation.”
The principle of confidentiality and settlement privilege that apply to family mediation in Quebec “is not absolute,” agrees counsel for the respondent. “There are exceptions to same, and they are entirely necessary for mediation to fulfill its objective of having parties settle disputes out of court.”
The Supreme Court was also unanimous in agreeing that the summary is not a binding agreement that lawyers draw up and the parties sign, says Goldwater; rather, the summary is simply a report on the mediation, but which the majority has now said “could be produced as an element of evidence of a contract based on subsequent conduct.”
The court also mentions that parties can enter into a contract whose terms are identical to those recorded by the mediator in the summary of mediated agreements, either by signing the summary or by consenting expressly or tacitly, said Biron and Kissel in an email -- and one way they can tacitly consent is by executing its terms.
Friday’s decision underscores the importance of parties engaging lawyers before they head into mediation, Goldwater says. Otherwise, “you may find yourself with a résumé des ententes … that’s useless,” she adds, and suggests the Quebec government clarify the scope of the résumé des ententes.
The majority of the Supreme Court “has decided that confidentiality in family law mediation is not absolute, contrary to what people are led to believe when encouraged to participate in the family mediation process,” said Sylvie Schirm and Marie-Elaine Tremblay of Schirm & Tremblay Avocats in Montreal, who acted for the Association de médiation familiale, in an email.
On the issue of costs, they noted that their client, “a non-profit organization represented on a pro-bono basis, which was not asking for any monetary compensation – is extremely disappointed and astonished that its attempt to have this important question in law and issue of public importance interpreted by our highest Court resulted in a bill [to it] of $15,000 plus disbursements.
“We cannot express our disappointment any better than the three dissenting judges did in paragraphs 180 and 181 of their judgment,” Schirm and Tremblay told Canadian Lawyer. “As attorneys, we are concerned that this will in effect throw cold water on non-profit organizations that wish to intervene on the important issues decided by our highest Court.”
Editor’s note: This story has been updated to include comments from counsel to the appellant.
