Canada’s Highest Court Confirms Exception To Settlement Privilege Applies To Family Mediations


Written on behalf of Shariff & Associates

In a significant decision released on December 17, 2021, the Supreme Court of Canada (“SCC”) has confirmed that, like in commercial cases, an exception to settlement privilege which allows parties to a settlement agreement to break privilege to confirm that such an agreement exists, is also available in family mediations

Revisiting Family Mediation Agreements  

In Association de médiation familiale du Québec v. Bouvier, 2021 SCC 54 (“Bouvier decision”), the SCC reviewed the lower court’s decisions regarding a spouse’s lawsuit seeking to increase the payments she had already agreed to two years previously in family mediation.

In Quebec, family mediation by certified mediators is made available to married, civil union and common-law spouses with or without children. This process is subsidized by the provincial government. The options available to Ontario spouses are described in the Ontario Mediation Options section below. 

The facts in the Bouvier decision were not in dispute. Ms. Isabelle Bisaillon and Mr. Michel Bouvier were common-law spouses for more than three years and had two children. After their relationship ended in 2012, they participated in family mediation 2012 with a certified mediator to resolve their disputes about the children’s care, the family home and financial matters. At the end of that process, the mediator prepared a document known as a “summary of mediated agreements” that explained how the parties had agreed to settle their disputes.  

In 2014, Ms. Bisaillon sought to revisit the financial terms of the 2012 mediation agreement. Mr. Bouvier sought to rely on the terms of the mediation agreement that was set out in the summary. Ms. Bisaillon denied the existence of the agreement and sought to invoke the rule of absolute confidentiality. 

The Superior Court of Quebec found that the settlement exemption applied and found that Ms. Bisaillon and Mr. Bouvier did in fact have a contract. Quebec’s Appeal Court came to the same conclusion. And finally, in the Bouvier decision, the SCC confirmed that parties could break settlement privilege in order to prove that a settlement agreement existed. 

In the reasons for the decision, Justice Kasirer, writing for the majority, noted that the “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” and therefore an exception should be permitted in order give parties “the proper tools to implement their agreement”. 

Both the majority and minority of the Supreme Court confirmed that the summary of mediated agreements is not a binding agreement, but rather a report on the mediation. The majority, however, confirmed that the summary “could be produced as an element of evidence of a contract based on subsequent conduct.” Therefore, parties participating in family mediation would be well advised to consult with legal counsel to ensure that any terms they agree to are enforceable. 

What is settlement privilege 

Settlement privilege is a rule of evidence that protects the confidentiality of communications and information exchanged for the purpose of settling a dispute. Courts and legislators across Canada, and many other jurisdictions, consider settlement privilege as fundamental to promoting settlements as a conflict resolution tool as the existence of such privilege promotes honest and frank discussions, which can make it easier to reach a settlement in all types of mediation. Settlement privilege applies without the parties needing to do anything, or sign any agreements confirming that it is in effect. It is important to note that, 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.

In Quebec, a civil law jurisdiction, settlement privilege is set out in Article 4 of the Code of Civil Procedure. In Ontario, a common law jurisdiction, the accepted rule of settlement privilege was set out by the Ontario Divisional Court in its decision in Inter-Leasing, Inc. v. Ontario (Finance), 2009 CanLII 63595 (ON SCDC). In his decision Justice Swinton laid out the three conditions that must be satisfied in order for settlement privilege to apply:

1. A litigious dispute must be in existence or within contemplation.

2. The communication must be made with the express or implied intention it would not be disclosed in a legal proceeding in the event negotiations failed.

3. The purpose of the communication must be to attempt to effect a settlement.

Exceptions to settlement privilege to prove existence of settlement agreement 

However, as confirmed by the SCC in its Bouvier decision, settlement privilege is not absolute. Common law and civil law establish several situations where settlement privilege can be lifted.  Under the settlement, exception communications that would otherwise be protected under settlement privilege can be disclosed in order to prove the existence or scope of a settlement arising from mediation. The exception, however, is very limited in scope, limited only to disclosing those communications that are necessary to prove the existence or scope of the settlement. 

The reasoning behind allowing such an exception is the same reasoning that is behind settlement privilege more generally. Both work together to promote settlements as a viable option for dispute resolution. The exception ensures that parties to a settlement can prove the existence of a settlement and are therefore more inclined to consider settlement as a viable option given that they know that they can rely on the settlement in the future. 

Ontario Mediation Options

In Ontario, spouses can choose from three mediation options. Onsite funding, offsite funding, and private family mediation. 

On-site mediation is a free mediation service available to parties on the day their matter is scheduled for court. Off-site, virtual mediation delivered by Service Providers under contract with the Ministry of the Attorney General is available at any time for a fee. User fees for off-site mediation may be charged to clients on a scale based on their income and the number of dependents. 

Private mediation is entirely paid for by the parties involved.

Contact Stouffville Family Lawyers For Separation and Divorce Mediation 

The family lawyers at Shariff & Associates work with clients to resolve their family law disputes through mediation. We will review your situation and provide a realistic assessment of the likelihood of successful outcomes and explore your other options. We will advocate for the best possible outcome on your behalf. To review your matter with a member of our team, please reach out to us online, or call us at 905-591-4545.