Association de médiation familiale du Québec v. Bouvier

Association de médiation familiale du Québec v. Bouvier
Collection
Supreme Court Judgments
Date
2021-12-17
Neutral citation
2021 SCC 54
Report
[2021] 3 SCR 805
Case number
39155
Judges
Wagner, Richard; Abella, Rosalie Silberman; Moldaver, Michael J.; Karakatsanis, Andromache; Côté, Suzanne; Brown, Russell; Rowe, Malcolm; Martin, Sheilah; Kasirer, Nicholas
On appeal from
Quebec
Subjects
Family law
Notes
Case in Brief SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: Association de médiation familiale du Québec v. Bouvier, 2021 SCC 54, [2021] 3 S.C.R. 805
Appeal Heard: March 18, 2021 Judgment Rendered: December 17, 2021 Docket: 39155
Between:
Association de médiation familiale du Québec Appellant
and
Michel Bouvier and Isabelle Bisaillon Respondents
Official English Translation: Reasons of Kasirer J.
Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.
Reasons for Judgment: (paras. 1 to 131)
Kasirer J. (Wagner C.J. and Moldaver, Côté, Brown and Rowe JJ. concurring)
Concurring Reasons: (paras. 132 to 181)
Karakatsanis J. (Abella and Martin JJ. concurring)
Association de médiation familiale du Québec Appellant
v.
Michel Bouvier and Isabelle Bisaillon Respondents
Indexed as: Association de médiation familiale du Québec v. Bouvier
2021 SCC 54
File No.: 39155.
2021: March 18; 2021: December 17.
Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.
on appeal from the court of appeal for quebec
Family law — Mediation — Confidentiality — Summary of mediated agreements — Proof of settlement — Exception to settlement privilege — Former spouses undertaking family mediation process — Mediator preparing summary of agreements arising from mediation — Summary of mediated agreements relied on in subsequent judicial proceedings to prove existence of settlement — Admissibility of summary of mediated agreements and other mediation communications challenged on ground that they were protected by confidentiality of mediation process — Legal status of summary of mediated agreements — Whether exception to settlement privilege that allows existence or scope of settlement to be proved applies in family mediation context.
I and M were de facto spouses for more than three years and had two children. After ending their union, they undertook a mediation process to resolve their disputes with respect to custody and support arrangements for the children, their respective rights in the immovable that served as their residence, and the determination of compensation for I to remedy the impact of childcare responsibilities on her career. Once the process had ended, the mediator recorded his conclusions about what had been agreed upon in mediation in a document called “summary of mediated agreements”. Sometime later, I filed a court action seeking greater financial compensation than was provided for in the summary of mediated agreements. In defence, M argued that the parties had entered into a contract during mediation, the terms of which were set out in the summary. I denied the existence of that contract and objected to the summary being admitted in evidence on the ground that it was protected by the confidentiality of the mediation process.
The trial judge dismissed I’s objection, relying in part on the exception to settlement privilege recognized in Union Carbide Canada Inc. v. Bombardier Inc., 2014 SCC 35, [2014] 1 S.C.R. 800, a commercial mediation case. This exception allows protected communications to be disclosed in order to prove the existence and terms of a settlement. On the basis of the summary and the parties’ post‑mediation conduct, the judge found that there was a contract between the parties. I appealed the trial judge’s decision. The Court of Appeal unanimously dismissed the appeal, though the judges did not agree about the application of the principles enunciated in Union Carbide in the family mediation context. I decided not to appeal the Court of Appeal’s decision, but a third party to the original litigation, the Association de médiation familiale du Québec, obtained leave to be substituted as appellant and to appeal the judgment to the Court.
Held: The appeal should be dismissed.
Per Wagner C.J. and Moldaver, Côté, Brown, Rowe and Kasirer JJ.: The settlement exception generally applies. Having regard to the very nature of family mediation, to its inherent procedural safeguards and to the terms of the standard family mediation contract used in Quebec, it is neither necessary nor desirable, for the protection of vulnerable parties, to establish a rule of absolute confidentiality or to depart from the rule developed in Union Carbide relating to the settlement exception. In this case, the parties did not displace this exception in their mediation contract. Where there is no settlement, preserving the absolute confidentiality of communications is an essential aspect of mediation and is necessary to encourage frank discussions. But confidentiality is above all a means to an end: where spouses resolve their dispute, this concern must yield, as far as necessary, to that of giving them the proper tools to implement their agreement. A rule of absolute confidentiality might deflect family mediation from its participatory and consensual foundations and undermine the parties’ adherence to this process for resolving their dispute, or even to the settlement itself. On the whole, to reject the exception recognized in Union Carbide in the family context would interfere with the primary objective of family mediation, which is to reach an agreement resolving an existing or anticipated dispute.
The coming into force of the new Code of Civil Procedure in 2016 has resulted in dispute prevention and resolution processes, including family mediation, being recognized as justice processes with the same importance as the traditional court process. This significant shift in Quebec’s legal culture was expressly undertaken by the legislature as an access to justice measure designed to make the system more accessible, faster, less cumbersome and less expensive. Mediation in the broad sense is a process of reaching a decision as a result of dialogue and negotiation assisted or facilitated by a neutral and impartial third party who has no decision‑making power and who is freely chosen by the parties to resolve an existing or anticipated dispute in an amicable and mutually acceptable manner and, ideally, to restore or improve the relationship. Family mediation, like the other types of mediation, is also characterized by the self‑determination aspect of the process, which is to say that the parties together choose the justice process that will allow them to resolve their dispute in a spirit of cooperation, despite the conflict that remains between them.
The special law of family mediation differs from general mediation law in that it does not allow the parties to be accompanied by legal advisers during the sessions, but this is not incompatible with the idea of participatory justice and of an agreement culture. The legislature’s purpose in preventing legal advisers from being present during family mediation sessions is to ensure that the parties really have the floor. Mediation is particularly well‑suited to family conflicts in this regard, because it helps to restore better communication between spouses and to preserve their relationship in the future in cases where there are children.
It is true that family mediation takes place in a unique context, one that is often charged and emotional, which distinguishes it from civil or commercial mediation. The problem of vulnerability in family mediation is a real one, but procedural safeguards that are inherent in the process serve to counter this vulnerability. Although parties to family mediation do not have the option of being assisted by a lawyer or notary during the sessions, the possibility of consulting a legal adviser at various times during the process exists and is even encouraged. The process is also guided by impartial third parties, who are certified and specially trained to address the psychological and legal needs of spouses and parents. Mediators are subject to strict professional obligations and have, among other things, the power to put an end to the mediation process in order to avoid irreparable prejudice. Moreover, there is no requirement that the parties enter into a contract when the mediation ends. In fact, the standard family mediation contract in Quebec specifically provides that family mediation sessions lead to a proposed agreement that is not binding.
The unsigned summary of mediated agreements, as provided by the mediator at the end of the sessions, is therefore not a contract. Following mediation, the parties will be free to enter into a contract whose terms differ in whole or in part from those recorded by the mediator in the summary. In principle, a summary of mediated agreements, as a simple writing prepared by a third party, is not admissible in court proceedings to prove a juridical act, but a court may not raise this rule of its own motion. In addition, even where a binding agreement is entered into following mediation, it will not be enforceable unless a court has reviewed it to determine its appropriateness, to the extent that it deals with matters of public order like custody of children and child support. This suggests that a binding agreement between spouses arising from family mediation, to the extent that it deals with matters of public order, cannot be a transaction within the meaning of art. 2631 C.C.Q., because no transaction may be made with respect to such matters. It follows that, very often, the parts of an agreement between spouses that do not concern matters of public order cannot be considered separately, because a transaction is indivisible as to its subject. All of these procedural safeguards serve to ensure that vulnerable parties will not unknowingly end up bound by an ill‑considered agreement.
Settlement privilege is a rule of evidence that protects the confidentiality of communications and information exchanged for the purpose of settling a dispute. It is recognized as fundamental to the making of an agreement between parties because it promotes honest and frank discussions, which can make it easier to reach a settlement in all types of mediation. The privilege applies without having to be invoked by the parties. Unlike a confidentiality clause in a contract, the privilege applies to all communications that lead up to a settlement, even after a mediation session has concluded. This common law rule is codified in art. 4 of the Code of Civil Procedure.
Settlement privilege is not absolute, however. There are some exceptions developed by the courts or established by law that allow confidentiality to be lifted. The settlement exception allows protected communications to be disclosed in order to prove the existence or scope of a settlement arising from mediation. It applies even where an agreement is not entered into until after mediation. In keeping with its purpose, the exception applies only to what is necessary to prove the existence or scope of the settlement. The exception serves the same public interest as the privilege itself, that is, the promotion of settlements. Once the parties have agreed on a settlement, the general interest of promoting settlements requires that they be able to prove the terms of their agreement.
The parties can displace the exception or change its scope by contract, provided that they do so clearly, and as long as they do not deprive a court of its supervisory jurisdiction over matters of public order. To determine whether a contract displaces the exception, it is necessary to ascertain the common intention of the parties, which requires analyzing the nature of the contract, the circumstances in which it was formed, and usage.
The trial judge was right not to allow the objection raised by I, and there was no reason to intervene on appeal. Before participating in family mediation, I and M signed a mediation contract modelled on the standard family mediation contract used in Quebec. Their contract contained a general confidentiality clause and an unambiguous statement that the objective of the process was to come to an agreement. None of the contract’s clauses clearly displaced settlement privilege or its exceptions, and the interpretation of the contract cannot lead to the contrary conclusion. Although the parties never signed the summary of mediated agreements, their subsequent conduct indicates that they had an agreement of wills that was clear enough for the formation of a true agreement reflecting the terms recorded in the summary of mediated agreements.
Exceptionally, the circumstances of this case justify an award of costs on a solicitor‑client basis; that being said, the specific circumstances and the Association’s status as a non‑profit organization call for caution. The Court has the discretion to depart from the usual practice and to order solicitor‑client costs in exceptional circumstances, such as where an appeal raises issues of general interest that go beyond the particular case of the successful party. Unlike in the Court of Appeal, where it intervened as a friend of the court, the Association is asking the Court to uphold the objection raised by I and has taken a position on the merits of the lower courts’ decisions, which were based on significant findings of fact. M has had to mount a defence against a third party to the original litigation that, despite I’s absence from the proceeding, is asking that the appeal be allowed. M did not have to personally bear the cost of such a test case, which went far beyond the facts of his original dispute. Because awarding solicitor‑client costs against the Association could have a deterrent effect on other organizations of this kind, and in light of the specific circumstances of this case, it is necessary to proceed with caution; therefore, as a compromise, costs should be limited to $15,000, plus disbursements.
Per Abella, Karakatsanis and Martin JJ.: There is agreement with the majority that the appeal should be dismissed. However, there is divergence of opinion regarding the conclusion that the Union Carbide exception to settlement privilege applies to communications that occur during family mediation sessions in Quebec. Discussions that occur within family mediation sessions remain confidential and cannot be disclosed or adduced as evidence unless the parties specifically agree otherwise. 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 the courts and the broader objectives of the family mediation regime. Accordingly, the summary of mediated agreements, being the mediator’s understanding of the potential basis for agreement between the parties, was inadmissible because it was protected by settlement privilege and the confidentiality terms of the contract.
Family law settlements are unique. The Court’s jurisprudence reflects an evolving understanding of the distinct challenges relating to the settlement of disputes in the family law context. A family breakdown is no ordinary legal issue. Familial relationships are not mere business relationships nor casual encounters. Their dissolution may be a catastrophic event in the lives of participants. The breakdown of a spousal relationship is often wrought with emotional turmoil, power imbalance and vulnerability. In these respects, family law cases, and in particular cases involving settlements, stand on an entirely different footing from commercial cases. In decisions spanning at least four decades, the Court has highlighted the central reality of vulnerability in family negotiations and has consistently recognized the need for a discrete approach to address the challenges of resolving family disputes. It has resisted importing principles that apply to commercial settlements into the family context and has adjusted the general private law to this unique context. The two realms have developed separately for good reason.
The objectives of family mediation are much broader than simply promoting the settlement of a specific legal dispute. In particular, two overarching public interest objectives are key, and both depend on complete confidentiality in the mediation sessions. First, family mediation sets the groundwork for restructuring relationships that can navigate the traumatic consequences of familial breakdowns on a long‑term basis, especially when children are involved. The aim of reshaping relationships carries much greater significance in the family context given the intimacy of family bonds. Typically, family disputes cover a broad range of issues, from the primary legal issues of support, custody and access, and division of property, to the intricate untangling of interdependent family affairs — issues that often require cooperation on a sustained basis. When children are involved, the best interests of the child deserve the ongoing ability of parents to communicate and resolve disputes. The objective of restructuring relationships is achieved through family mediation’s unique focus on promoting earnest discussions, dialogue and active listening. In Quebec, this priority is reflected in the interdisciplinary nature of the regime: it deals with every aspect of a relationship breakdown, whether the issues are emotional, relational, financial or legal in nature.
Second, family mediation strives to protect vulnerable parties and compensate for power imbalances to achieve equitable outcomes. The process is designed for parties who, in the tumult of separation, inevitably bring to the table a host of emotions and concerns that do not obviously accord with the making of rational economic decisions. This objective plays a broader role in family mediation and negotiation than it does in commercial settings because the intimate nature of the relationship between the parties makes it difficult to overcome potential power imbalances and modes of influence. After all, family mediation in Quebec aims to reach a fair settlement, not just any form of settlement.
Confidentiality furthers mediation’s participatory and consensual foundations, as well as the objective of reaching settlements in the family context. The effectiveness of family mediation in promoting settlements is predicated on the creation of a confidential space where the parties can fully explore common ground on a diverse range of interrelated issues and engage without fear of legal repercussions. Confidentiality is essential for full and frank discussions, which are necessary to establishing functional familial dynamics going forward. It is also critical for protecting vulnerable parties and compensating for power imbalances, in that confidentiality prevents the more powerful party from using the words of the more vulnerable party to substantiate an unfair agreement. This risk is pronounced in Quebec given the regime’s prohibition on lawyers being present during the sessions. Family law mediators may not always be able to intervene to protect vulnerable parties because abusive dynamics are not always evident.
There are two overriding problems with the application of the settlement exception discussed in Union Carbide to confidential communications during family mediation sessions. First, the justification for the exception to settlement privilege — to encourage settlement of legal disputes — does not account for the unique context of family settlement, nor the broader objectives of family mediation. Exceptions are applied with regard to their purpose and not mechanically. Encouraging the settlement of legal disputes is not the only public interest at stake in the family law context.
Second, the exception’s underlying reasoning is fundamentally incompatible with the nature of family mediation in Quebec. In Union Carbide, the objective of promoting settlement was served by the possible disclosure of communications constituting the offer and acceptance of a binding contract. In the present context, however, no offer and acceptance can occur during mediation sessions. The Quebec mediation regime, which prohibits the presence of lawyers, forecloses parties from reaching a binding settlement in mediation sessions — they are a forum for exploratory negotiations that may, but need not, lead to a settlement outside of mediation. It follows that the terms of an agreement can only be reached outside the mediation process.
Even if Union Carbide were to apply to the family law context, it remains open to the parties to contract for greater confidentiality than is available at common law. The question is whether an absolute confidentiality clause in a mediation agreement displaces the common law exception. In this case, the text and nature of the contract, as well as the circumstances in which it was formed, lead to the conclusion that the parties intended complete confidentiality during mediation sessions, therefore displacing the exception to settlement privilege.
Therefore, the summary of mediated agreements was not admissible, as it contains protected confidential information. The trial judge erred in proceeding on the basis that a contract could be formed during the mediation sessions. He also erred in admitting confidential information from the mediation sessions and the summary of mediated agreements into evidence. I’s objection to the admissibility of the summary of agreements should be sustained. However, given the limited record before the Court, it is difficult to assess whether the evidence would otherwise have been sufficient to justify the trial judge’s conclusion regarding the existence of a contract; therefore, the disposition appealed from should not be overturned.
The majority’s award of solicitor‑client costs against the Association in this case is unprecedented and unwarranted. The Court has never ordered costs on a solicitor‑client basis against a non-profit organization that raised an issue of public importance. An award on this scale is an extraordinary measure that effectively penalizes a non‑profit organization for bringing forth an issue of obvious importance to an area of law that touches the lives of so many Canadians. It can only deter such parties from doing so in the future.
Cases Cited
By Kasirer J.
Applied: Union Carbide Canada Inc. v. Bombardier Inc., 2014 SCC 35, [2014] 1 S.C.R. 800; considered: Miglin v. Miglin, 2003 SCC 24, [2003] 1 S.C.R. 303; Roberge v. Bolduc, [1991] 1 S.C.R. 374; referred to: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87; Rick v. Brandsema, 2009 SCC 10, [2009] 1 S.C.R. 295; Howick Apparel Ltd. v. Champoux, 2007 QCCA 674; Droit de la famille — 211056, 2021 QCCS 2431; Droit de la famille — 133025, 2013 QCCA 1869; Droit de la famille — 171578, 2017 QCCS 3018; Droit de la famille — 111393, 2011 QCCS 2411; V.F. v. T.D., 2005 QCCA 907; Droit de la famille — 083185, 2008 QCCA 2405, [2009] R.D.F. 8; Globe and Mail v. Canada (Attorney General), 2010 SCC 41, [2010] 2 S.C.R. 592; Sable Offshore Energy Inc. v. Ameron International Corp., 2013 SCC 37, [2013] 2 S.C.R. 623; Caron v. Alberta, 2015 SCC 56, [2015] 3 S.C.R. 511; Montréal (City) v. Octane Stratégie inc., 2019 SCC 57; Mackin v. New Brunswick (Minister of Finance), 2002 SCC 13, [2002] 1 S.C.R. 405; Young v. Young, [1993] 4 S.C.R. 3; Finney v. Barreau du Québec, 2004 SCC 36, [2004] 2 S.C.R. 17; Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3.
By Karakatsanis J.
Distinguished: Union Carbide Canada Inc. v. Bombardier Inc., 2014 SCC 35, [2014] 1 S.C.R. 800; referred to: Rathwell v. Rathwell, [1978] 2 S.C.R. 436; Pettkus v. Becker, [1980] 2 S.C.R. 834; Richardson v. Richardson, [1987] 1 S.C.R. 857; Pelech v. Pelech, [1987] 1 S.C.R. 801; Lacroix v. Valois, [1990] 2 S.C.R. 1259; Moge v. Moge, [1992] 3 S.C.R. 813; Peter v. Beblow, [1993] 1 S.C.R. 980; Bracklow v. Bracklow, [1999] 1 S.C.R. 420; Boston v. Boston, 2001 SCC 43, [2001] 2 S.C.R. 413; Miglin v. Miglin, 2003 SCC 24, [2003] 1 S.C.R. 303; Rick v. Brandsema, 2009 SCC 10, [2009] 1 S.C.R. 295; L.M.P. v. L.S., 2011 SCC 64, [2011] 3 S.C.R. 775; Quebec (Attorney General) v. A, 2013 SCC 5, [2013] 1 S.C.R. 61; Colucci v. Colucci, 2021 SCC 24, [2021] 2 S.C.R. 3; Logan v. Williams (1989), 41 B.C.L.R. (2d) 34; Hartshorne v. Hartshorne, 2004 SCC 22, [2004] 1 S.C.R. 550; Sable Offshore Energy Inc. v. Ameron International Corp., 2013 SCC 37, [2013] 2 S.C.R. 623; Meyers v. Dunphy, 2007 NLCA 1, 262 Nfld. & P.E.I.R. 173; Unilever plc v. The Procter & Gamble Co., [2001] 1 All E.R. 783; Groupe Blouin inc. v. Société Radio‑Canada, 2016 QCCA 1715; Ouellet (Trustee of), 2004 SCC 64, [2004] 3 S.C.R. 348; Lefebvre (Trustee of), 2004 SCC 63, [2004] 3 S.C.R. 326; CIBC Mortgage Corp. v. Vasquez, 2002 SCC 60, [2002] 3 S.C.R. 168; Roberge v. Bolduc, [1991] 1 S.C.R. 374.
Statutes and Regulations Cited
Civil Code of Québec, arts. 6, 522, 586, 587.1, 587.3, 594, 604, 606, 612, 1385, 1386, 1388, 1399, 1425, 1426, 1427, 2631, 2632, 2633, 2843, 2859, 2862, 2865.
Code of Civil Procedure, CQLR, c. C‑25, arts. 151.16, 814.7, 815.3, 827.2 to 827.4.
Code of Civil Procedure, CQLR, c. C‑25.01, arts. 2, 4, 5, 605, 606, 607, 609, 610, 613, 614, 617, 618, 619.
Code of ethics of notaries, CQLR, c. N‑3, r. 2, s. 3.
Code of Professional Conduct of Lawyers, CQLR, c. B‑1, r. 3.1, s. 42.
Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.).
Regulation respecting a Family Mediation pilot project for couples who have no common dependent children, CQLR, c. C‑25.01, r. 6.1.
Regulation respecting family mediation, CQLR, c. C‑25.01, r. 0.7, ss. 1, 2, 10, 10.1.
Rules of the Supreme Court of Canada, SOR/2002‑156, r. 39.
Supreme Court Act, R.S.C. 1985, c. S‑26, s. 47.
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APPEAL from a judgment of the Quebec Court of Appeal (Doyon, Hogue and Roy JJ.A.), 2020 QCCA 115 (sub nom. Bisaillon v. Bouvier), [2020] J.Q. no 282 (QL), 2020 CarswellQue 293 (WL Can.), affirming a decision of Moore J., 2017 QCCS 3788, [2017] J.Q. no 11071 (QL), 2017 CarswellQue 7306 (WL Can.). Appeal dismissed.
Sylvie Schirm and Marie‑Elaine Tremblay, for the appellant.
Joanne Biron and Emily Kissel, for the respondent Michel Bouvier.
No one appeared for the respondent Isabelle Bisaillon.
English version of the judgment of Wagner C.J. and Moldaver, Côté, Brown, Rowe and Kasirer JJ. delivered by
Kasirer J. —
I. Overview
[1] Since the introduction of the first mediation service for families at the Quebec Superior Court in 1981, Quebec law has embraced this private dispute prevention and resolution process, which differs in many respects from civil justice administered by the courts. According to the data of the Ministère de la Justice for 2013‑14 — at the time of the dispute between the spouses in this case — about 15,000 couples received free family mediation sessions, and 80 percent of them reached an agreement resolving their various conflicts (Committee of Accrediting Organizations in Family Mediation (“COAMF”), Standards of Practice in Family Mediation (2016) (“2016 Guide”), at p. 3). In Quebec, family mediation by certified mediators is made available to married, civil union and de facto spouses with or without children. Significantly subsidized, mediation unquestionably has the favour of the government: the law even provides that spouses must attend a family mediation information session before a court may hear their judicial application.
[2] Although this record is impressive and represents a considerable step forward for access to justice, some debate persists about certain aspects that are rooted in the very nature of this procedure and, as this appeal shows, about the role of confidentiality in family mediation, as opposed to civil or commercial mediation. At a time when the Quebec legislature has made private dispute prevention and resolution processes central to its reform of civil justice in the new Code of Civil Procedure, CQLR, c. C‑25.01 (“N.C.C.P.”), this appeal affords the Court an opportunity to clarify the scope of family mediation as a mechanism of what is known as participatory and consensual justice. The issue reflects a shift that has taken place in other parts of Canada, where it is recognized in a variety of contexts that “alternative models of adjudication are no less legitimate than the conventional trial” for ensuring timely and affordable access to civil justice (Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 27; see also para. 2).
[3] After ending their de facto union, Isabelle Bisaillon and Michel Bouvier undertook a mediation process to resolve their disputes with respect to custody and support arrangements for their children, their respective rights in the immovable that served as their residence, and the determination of compensation for Ms. Bisaillon to remedy the impact of childcare responsibilities on her career. Once their meetings had ended, the certified mediator recorded his conclusions about what had been agreed upon in mediation in a document called a “summary of mediated agreements”, which is the term used in the standard family mediation contract in Quebec. Sometime later, Ms. Bisaillon filed a court action seeking greater financial compensation than was provided for in the summary of mediated agreements, including in relation to the partition of the immovable. In defence, Mr. Bouvier argued that the parties had entered into a contract during mediation, the terms of which were set out in the summary. Ms. Bisaillon denied the existence of that contract and objected to the summary being admitted in evidence on the ground that it was protected by the confidentiality of the mediation process.
[4] The trial judge dismissed Ms. Bisaillon’s objection, relying in part on Union Carbide Canada Inc. v. Bombardier Inc., 2014 SCC 35, [2014] 1 S.C.R. 800, a commercial mediation case, and found that there was a contract between the parties dealing, among other things, with rights in the residence. The Court of Appeal unanimously dismissed Ms. Bisaillon’s appeal, though the judges did not agree about the application of the principles enunciated in Union Carbide in the family mediation context. Ms. Bisaillon decided not to appeal the Court of Appeal’s decision.
[5] The Association de médiation familiale du Québec obtained leave from this Court to be substituted as appellant in order to raise Ms. Bisaillon’s objection and have the Court of Appeal’s judgment set aside. The Association argues that discussions during family mediation and the summary of mediated agreements prepared by a mediator are protected by a rule of absolute confidentiality that is necessary for such a process to function fairly and effectively. Without such confidentiality, mediation would entail risks for vulnerable spouses.
[6] I disagree with the Association on this point. It is certainly true that confidentiality is necessary in any mediation to allow for frank discussions between the parties in order to encourage settlements. 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. 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 [translation] “procedural safeguards” while at the same time protecting public order (I take the term “procedural safeguard” from J.‑F. Roberge, La justice participative: Fondements et cadre juridique (2017), at p. 106).
[7] These safeguards are implemented primarily by two actors who are, by comparison, absent from civil and commercial mediation: the government‑certified family mediator chosen by the parties under the standard mediation contract, and the judge who is asked to confirm any agreement arising from family mediation. These two actors play a key role in the protection of more vulnerable parties, one that is unique to this form of mediation in that it serves to alleviate the risks associated with the absence of legal advisers during family mediation sessions.
[8] Given the significance of the procedural safeguards inherent in family mediation, it is, in my respectful view, an error to insist