Association de médiation familiale du Québec v. Bouvier : SCC Finds the Exception to Settlement Privilege Applies in the Family Mediation Context
Should conversations that take place during family mediation remain confidential? In Association de médiation familiale du Quebec v. Bouvier, 2021 SCC 54 [Association de mediation] the Supreme Court of Canada (“SCC” or “the Court”) held that the exception to the general rule of settlement privilege can apply in the context of family mediation. An exception to settlement privilege may be made out where “a defendant . . . show[s] that, on balance, ‘a competing public interest outweighs the public interest in encouraging settlement’” (Union Carbide Canada Inc. v. Bombardier Inc, 2014 SCC 35 [Union Carbide] at para 34, quoting Sable Offshore Energy Inc. v. Ameron International Corp., 2013 SCC 37 at para 19). The Court held that the exception may apply in order to prove the existence of a settlement agreement during subsequent court proceedings.
The facts of this case concern a separated couple in Quebec. During the course of their spousal relationship, Ms. Bisaillon and Mr. Bouvier had two children and shared a residence together. During their relationship, the couple decided that Ms. Bisaillon would stay home and take care of the children. Given her caregiving contributions, Mr. Bouvier paid for their family residence until a point where they decided to share the costs equally (Association de mediation, para 11). When the couple separated, they disagreed about how much they each had put into buying and renovating the home. However, the notarial deed for the home held that the spouses were “equal undivided co-owners.” (Association de mediation, para 11). The couple proceeded to participate in mediation to facilitate discussions on custody and support of the children along with the division of the residence and other outstanding matters (Association de mediation, para 12).
Prior to the mediation, Ms. Bisaillon and Mr. Bouvier signed a standard mediation agreement which stated the desired goals and outcomes of the mediation. The contract stated that the couple was entering into the process with the intention of coming to an agreement, and that the mediator’s role was to assist with the negotiations (Association de mediation, para 14). Included in this agreement was a clause that highlighted the “confidential nature” of the mediation which explicitly stated,
“We commit ourselves to not use as a proof in front of a court any document contained in the file, including the Summary of Mediated Agreements, without the consent of both parties. The mediator cannot communicate this information to anyone except when the law expressly orders it” (Association de mediation, para 14).
Upon the conclusion of the mediation sessions, the ex-partners received a summary of the “mediated agreements” from the mediator. They had acknowledged by signing the mediation contract, that the Summary of Mediated Agreements (through signature of the contract) was not a legal document nor an enforceable agreement (Association de mediation, para 15). However, the mediation contract stated that although the Summary of Mediated Agreements was not enforceable, it could still produce legal effects (Association de mediation, para 15).
The legal issue between the ex-partners arose when Ms. Bisaillon sought equal partition of their residence in court and Mr. Bouvier, in defence, argued that the summary of mediated agreements was a contract which settled the matter (Association de mediation, para 3). In Mr. Bouvier’s view, there was no need to go to court as the matter had been settled through mediation. Ms. Bisaillon maintained that the Summary of Mediated Agreements was inadmissible due to confidentiality and that the matter was never settled in mediation through a binding agreement (Association de mediation, para 3).
The Quebec Superior Court (“QCCS”) found that Ms. Bisaillon had accepted that she and her ex-partner had reached an agreement and that she had made no express objections to the agreement (Bisaillon c. Bouvier, 2017 QCCS 3788). According to Justice Moore of the QCCS, the facts led to a finding that the couple had reached an agreement through mediation. Primarily, Justice Moore found it convincing that after mediation concluded, Mr. Bouvier had sent Ms. Bisaillon cheques which she cashed. Further, the couple had exchanged emails which referenced mediation. To Justice Moore, this alluded to the fact that the couple reached an agreement during the course of the mediation proceedings and they intended for the agreement to be binding.
The QCCS referenced the leading case on the exception to settlement privilege, Union Carbide, which allowed evidence to be admitted “if it is necessary to prove the existence and terms of a settlement” (Association de mediation, para 24). In light of Mr. Bouvier and Ms. Bisaillon’s email exchanges and the Union Carbide exception, the QCSS found that the confidential nature of the agreement was waived and the agreement could be admitted as evidence (Association de mediation, para 21).
Ms. Bisaillon subsequently appealed to the Quebec Court of Appeal (Bisaillon c. Bouvier, 2020 QCCA 115). The Association de médiation familiale du Quebec (“the Association”) was given permission to intervene as a friend of the court given the pressing public interest of confidentiality within the family mediation process (Association de mediation, para 27). Although they were granted intervenor status, the Quebec Court of Appeal found that the purpose of family mediation is to reach an agreement in a confidential setting and that although the partners could have expressly displaced the settlement exception from Union Carbide, they had not done so (Association de mediation, para 30). The Quebec Court of Appeal was unclear regarding what would have displaced the settlement exception in this context.
Ms. Bisaillon decided not to pursue the matter any further and the Association was granted permission to take the matter to the SCC. The Association submitted that the summary of mediated agreements is a “working tool” and not a contract which can be admitted in evidence in litigation proceedings (Association de mediation, 35). Further, given that many individuals who participate in family mediation are likely in a vulnerable position, the Association argued that mediation needs to be kept confidential in order to maintain its efficacy as an alternative dispute resolution mechanism (Association de mediation, para 35). According to the Association, the exception to settlement privilege set out in Union Carbide is not applicable within the family law regime which primarily concerns vulnerable persons (Association de mediation, para 5).
In the majority decision delivered by Justice Kasirer, the SCC held that the Association’s appeal should be dismissed. In the eyes of the SCC, the rule of absolute confidentiality would lessen parties’ availability to come to an agreement and would do little to protect vulnerable participants. Further, the Court affirmed the rule in Union Carbide finding that confidentiality is a “means to an end” and may be waived in order to pursue justice (Association de mediation, 104). The Court articulated that to depart from the holding in Union Carbide would do injustice to the primary objective of family mediation, which is to reach an agreement.
In the concurring judgement, Justice Karakatsanis agreed with the majority “that no binding agreement can be reached during the mediation sessions”and that the “summary of mediated agreements cannot reflect a binding agreement and it is simply the mediator’s understanding of the potential basis for agreement at the conclusion of the mediation sessions.” (Association de mediation, para 176). Justice Karakatsanis departed from the majority’s decision, however, in finding that the summary of mediated agreements was nonetheless admissible (Association de mediation, para 177). For Justice Karakatsanis, the summary of mediated agreements came after the mediation session and therefore, was not representative of any contractual discussions during the mediation (Association de mediation, para 178). As such, it was not excluded by settlement privilege.
Access to Justice – Exacerbated in the Family Law Context?
While the majority decision attempts to justify the settlement privilege exception in the name of justice, the decision may merely be lip service when it comes to protecting the interests of vulnerable parties. While the Court states that absolute privilege can be dissolved by the parties, the Court does not persuasively present an account of how laypersons engaging in mediation can be reasonably expected to know their waiver rights, let alone exercise them. This is particularly troubling given the fact that in Quebec, lawyers are not allowed to be present during family mediation in an attempt to lessen power imbalances between parties with different resources (Association de mediation, para 50).
The facts of the case also prove troublesome when it comes to the amount of weight the Quebec Superior Court placed on the external conduct of the parties. The Superior Court believed that the acts of Ms. Bisaillon, including the cashing of her ex-partners cheques and references to the mediation in email conversations meant that both parties had considered their conflict to be settled through the mediation process and that this constituted a contract which waived confidentiality (Association de mediation, para 33).
This finding of the Superior Court highlights how problematic assumptions about out-of-court interactions can be and how they can prejudice legal proceedings. If the Court is to truly acknowledge power imbalances between vulnerable parties, particularly within the family law context, a strong place to start might be by looking at how different relational dynamics influence out-of-court behaviour. Further, while the Superior Court placed heavy weight on the email exchanges between the two parties, it is problematic to assume that what is said in an online exchange between ex-partners can be representative of their true positions. This is especially true given that different power dynamics (which the Court has acknowledged in the mediation context) might be at play in other areas of family law disputes. Given the importance for parties, especially parties in a vulnerable position, to be on equal footing, why is the Court not wary of these unequal power dynamics within out-of-court proceedings?
While the out-of-court exchange between the ex-spouses did not ground the Supreme Court’s decision, the mere fact that the Court did not caution against drawing conclusions of this sort provides room for future improvement. If protecting vulnerable parties is a priority of the Court, greater effort needs to be made in acknowledging how dynamics play out in the “real world.” Assumptions of what amounts to reasonable behaviour in familial relationships is a complex and nuanced subject which requires greater attention within legal proceedings.
Solicitor-Client Costs Against the Association – A Chilling Effect?
Another effect of this decision is the potential chilling effect it has on questions of public importance brought by not-for-profit organizations. This point was aptly made by Justice Karakatsanis in her concurring decision. While the majority held that solicitor-client costs against the Association were justified, Justice Karakatsanis would have not awarded solicitor-client costs against the Association given their success on the legal questions at issue. In Justice Karakatsanis words,
“The majority’s award of solicitor-client costs against the Association in this case is unprecedented and unwarranted. Of all the reported cases of this Court, I could find only four cases where the Court ordered solicitor-client costs against a private party that raised a question of public importance” (Association de mediation, para 180).
If private parties are deterred from raising questions of public importance, specifically in the family law context, the costs will fall on individual plaintiffs in each circumstance. Further, not-for-profit organizations such as the Association have experience and extensive knowledge of the issues that most affect those within their practice area (in this case, families that engage in mediation). Moving forward, organizations may be reticent to engage in litigation and advocacy knowing that they may be footing the bill for enhancing access to justice. If the Court is to protect vulnerable groups, it needs to pay stronger attention to the host of procedural inequalities at play.