Association de médiation familiale du Québec v. Bouvier, 2020 QCCA 1152021 SCC 54 (39155)

“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.”

The SCC (9:0) dismissed the appeal. 

Justice Kasirer wrote as follows (at paras. 5-10, 75, 79-84, 88, 95-99, 114-115):

“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.

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).

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.

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. To reject the settlement exception recognized by this Court in Union Carbide in favour of absolute confidentiality would interfere with the primary objective of family mediation, which is to reach an agreement resolving an existing or anticipated dispute. Moreover, the interpretation of the standard mediation contract widely used in Quebec, and of the contract signed by the spouses in this case, supports the conclusion that parties to such a process do not exclude from the outset the settlement exception from Union Carbide. Therefore, where spouses enter into a settlement at the end of a mediation process governed by the standard contract, the settlement exception can apply and allow them to file in evidence the communications that are necessary to establish the existence or terms of their agreement.

Even though the settlement exception applies in family mediation governed by the standard contract scheme, proof that the parties actually entered into an agreement must still be made in accordance with the rules of the law of evidence. It is useful to put an end to a debate that has long troubled family mediation in Quebec: the summary of mediated agreements provided to the parties by the mediator at the end of the family mediation process is not a contract that can serve to prove such an agreement, but simply a working tool for the spouses. Prepared by the mediator on the basis of the spouses’ discussions during mediation, the summary cannot satisfy the requirement that there be an agreement of wills for the formation of a valid contract, because, at the time it is given to the parties, it does not reflect firm offers to contract or firm acceptances by the spouses. That being said, nothing prevents the parties from entering into a contract whose terms are identical to those recorded by the mediator in the summary of mediated agreements. They can do so by signing the summary or by consenting expressly or tacitly after it has been given to them. Because the parties are encouraged to obtain independent legal advice after receiving that document, they may also decide to bind themselves contractually on different terms, or not to bind themselves at all. In any event, the unsigned summary of mediated agreements given to the spouses is not a contract, because it is not a juridical act that results from an agreement of wills between the spouses and that is intended to produce legal effects. In this regard, and subject to the rule of evidence in art. 2859 of the Civil Code of Québec (“C.C.Q.”), which limits a court’s power to raise grounds of inadmissibility of its own motion, an unsigned summary is a simple writing and is generally not admissible to prove the existence of an agreement arising from mediation.

In this case, the trial judge was correct in finding that the parties, through their communications following the mediation sessions, had expressed their intention to be bound contractually. Even without the summary of mediated agreements, their testimony regarding their communications during mediation and the evidence concerning their communications thereafter were admissible and could serve to prove the existence and terms of a settlement, in accordance with the principles set out in Union Carbide and in the absence of any objection based on the applicable rules of evidence. The parties exchanged consents after being given the summary and entered into a binding agreement, which, in the circumstances of this case, reflected the terms recorded in the summary.



In summary, if the parties wish to bind themselves contractually, they may do so in accordance with the rules of contract formation after being given the summary of mediated agreements. Before they are given the summary, the solutions identified by them during the sessions — the potential “consensus” to which the Guide refers — at best represent a proposed agreement that must be confirmed by them in order to have contractual effect. The parties will therefore not be bound by offers made during the sessions until they have had an opportunity to think about them and, if need be, to consult a legal adviser. These rules established by the standard contract serve as an important procedural safeguard against any rash undertaking by the parties.


 

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. The Court of Appeal was thus correct to find that this document is a working tool that is not binding on the parties (C.A. reasons, at paras. 97‑101; see also Sup. Ct. reasons, at para. 56; R. Tremblay, “Réflexions sur le dialogue entre la médiation familiale et le droit de la famille”, in J. Torres‑Ceyte, G.‑A. Berthold and C.‑A. M. Péladeau, eds., Le dialogue en droit civil (2018), 201, at pp. 218‑19 and 227‑28).

It nonetheless remains possible for parties to bind themselves contractually in accordance with the terms recorded in the summary of mediated agreements in two specific situations.

First, the parties may sign the summary of mediated agreements, in which case it is clear that they will be bound contractually in accordance with its terms because they have expressed a firm intention to bind themselves (Tétrault, at p. 409). That being said, the parties’ mediation contract in this case and the Guide urge them not to sign the summary without consulting an independent legal adviser. In addition, the summary itself contains a cautionary note about the possible consequences of signing it:

  • [translation] We also inform you that the signature of the Summary of Mediated Agreements would produce legal effects, even if it is not enforceable, and that it is therefore preferable to obtain independent legal advice before signing it.
    (A.R., at p. 97)

Second, the parties may decide, following mediation and after being given the summary, to enter into an oral or written contract by expressing their intention to bind themselves in accordance with the terms of the summary. Just as it is possible that the parties, after the sessions have ended, will enter into a contract that rejects all or some of the agreed points set out in the summary, as Hogue J.A. correctly noted (C.A. reasons, at para. 101; see also Droit de la famille — 171578, 2017 QCCS 3018; Droit de la famille — 111393, 2011 QCCS 2411, at para. 16 (CanLII)), it is also possible that they will subsequently decide that the summary of mediated agreements is a true and accurate representation of their respective intentions, once they have had an opportunity to think about it (Lambert and Bérubé, at p. 315). Indeed, the parties can express either explicitly or implicitly, including through their conduct, their intention to be bound by terms reflecting those of the summary. The summary also contains a cautionary note to this effect:

  • [translation] Similarly, we wish to inform you that the implementation of all or part of the agreements may also produce legal effects in the sense that it may constitute an acknowledgement of the agreement before it goes before a court.
    (A.R., at p. 97)

t is important to note that, in such circumstances, the summary of mediated agreements will not be “transformed” into a contract, even if the parties express a firm intention to bind themselves in accordance with its terms after the sessions have ended. The juridical act will not be formed until there is an exchange of wills subsequent to the mediation sessions, when the parties agree on terms. Even where the parties’ conduct in this exchange shows that they intended the terms of their contract to be exactly the same as those of the summary, the unsigned summary will not be the juridical act itself and will remain a simple writing. This distinction is important, as it affects the admissibility of the summary of mediated agreements in evidence, which will be discussed below.

In sum, contract law and the standard contract used in this case confer additional protections on the parties to family mediation, who will not be bound automatically by proposed agreements without having formally consented to them after being given the summary of mediated agreements. Where the parties decide to turn to the courts or where one of them challenges the validity of an agreement, it will then be up to a judge to determine whether there is indeed an agreement of wills between the parties and whether it is valid.



To conclude on this point, family mediation is a mechanism of civil justice that involves inherent protections to guard against the possibility that vulnerable parties will unknowingly end up bound by an ill‑considered agreement. The process is 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 contract specifically provides that family mediation sessions lead to a proposed agreement that is not binding. 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.


 

Settlement privilege is a rule of evidence that protects the confidentiality of communications and information exchanged for the purpose of settling a dispute (Union Carbide, at paras. 1 and 31; Globe and Mail v. Canada (Attorney General), 2010 SCC 41, [2010] 2 S.C.R. 592, at para. 80; Lafond and Thériault, at No. 3‑9). It is recognized as fundamental to the making of an agreement between parties (Sable Offshore Energy Inc. v. Ameron International Corp., 2013 SCC 37, [2013] 2 S.C.R. 623; Union Carbide, at para. 1) because it promotes honest and frank discussions, which can make it easier to reach a settlement in all types of mediation (Union Carbide, at para. 31). The privilege applies in the general law of mediation without having to be invoked by the parties, because it [translation] “presupposes that all discussions in the course of mediation between the parties are protected at all times” (Piché, at Nos. 1284‑86; see also Union Carbide, at para. 34). Unlike a confidentiality clause in a contract, “settlement privilege applies to all communications that lead up to a settlement, even after a mediation session has concluded” (Union Carbide, at para. 51). This common law rule, often called the “duty of confidentiality” in Quebec law, has been codified in art. 4 N.C.C.P. since the reform of the Code of Civil Procedure (D. Ferland and B. Emery, Précis de procédure civile du Québec (6th ed. 2020), vol. 1, at No. 1‑41). The new Code of Civil Procedure also sets out the principle that mediators and mediation participants are non‑compellable (art. 606).

Settlement privilege is not absolute, however. For one thing, the parties can change its scope by contract (Union Carbide, at paras. 39, 54 and 58), as long as they do not deprive a court of its supervisory jurisdiction over matters of public order. There are also some exceptions developed by the courts or established by law that allow confidentiality to be lifted on an exceptional basis, for example where there is fraud or professional misconduct by a mediator (Sable Offshore, at para. 19; Union Carbide, at paras. 34 and 49; art. 606 N.C.C.P.; 2016 Guide, at p. 11).

In Union Carbide, this Court reiterated the importance of another exception developed by the courts, the settlement exception, which is central to this appeal. This exception allows protected communications to be disclosed in order to prove the existence or scope of a settlement arising from mediation (Union Carbide, at paras. 35‑36; Roberge (2017), at p. 104). It applies even where an agreement is not entered into until after mediation (Union Carbide, at para. 34). In keeping with its purpose, the exception applies only to what is necessary to prove the existence or scope of the settlement (ibid., at para. 35).

In Union Carbide, Wagner J., as he then was, explained that the settlement 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” (para. 35). It is in this sense, as Wagner J. observed, that disclosure to prove the terms of an agreement promotes settlements generally. It follows that the exception in no way weakens the principle of privilege in mediation. As noted by Paul M. Perell (now a justice of the Ontario Superior Court), “where the without prejudice settlement offer has been accepted, there is no longer any public policy reason to exclude the evidence, the goal of the policy having been achieved” (“The Problems of Without Prejudice” (1992), 71 Can. Bar Rev. 223, at p. 234). Within the limits of public order, this logic applies, in my view, both in family mediation and in civil and commercial mediation when parties opt for confidentiality to serve their primary objective of reaching a settlement. As the trial judge wrote: [translation] “Prohibiting the submission of such evidence based on the principle of confidentiality would make it impossible to homologate such an agreement once its existence is contested, which would make little sense” (para. 41).

Nevertheless, parties are free to contract out of the settlement exception. Because a failure to apply the exception “could frustrate the broader purpose of promoting settlements”, parties must express this intention clearly in their mediation contract (Union Carbide, at para. 50; see also para. 54).


 

In short, the settlement exception adopted by this Court in Union Carbide must apply equally in family mediation governed by the standard contract. However, it must be kept in mind that the parameters for its application will be different in the context of family mediation based on the COAMF’s standard contract than under other contractual schemes governing civil or commercial mediation. A notable influence on how Union Carbide is applied is the fact that the standard contract scheme makes it impossible to form a binding agreement during family mediation sessions, because the proposals made by the spouses are not firm offers. The scheme provides that the process ends with the parties being given a summary of mediated agreements, not with a binding agreement, and that the parties will have an opportunity to consult an independent legal adviser before they are bound contractually by an agreement arising from mediation. These aspects specific to the standard contract scheme are crucial, because their effect is to defer the moment when the parties can enter into a binding agreement and, therefore, the moment when the exception could apply and cause confidentiality to be lifted. It follows that, under the standard family mediation contract scheme, all communications made by spouses for the purpose of resolving their dispute will remain completely confidential unless one of the recognized exceptions applies. The settlement exception will apply only if (1) the spouses reach a settlement after the process ends and after they are given the summary of mediated agreements, once they have had an opportunity to consult an independent legal adviser, and (2) one of them denies the existence or terms of the agreement or objects to its implementation. In addition, even where these two conditions are met, the settlement exception will allow disclosure only of the communications that are necessary to establish the existence or terms of the agreement, not of all communications (Union Carbide, at para. 35). There should therefore be no fear that private communications concerning the parties’ relationship will be revealed: if such communications are not necessary to prove the settlement, they will be shielded from the exception and will remain confidential forever.”