Confidentiality Imperiled: Contractual Norms and Family Law in Association de médiation familiale du Québec v. Bouvier
Anastasia Jones, 2L, Volume 80 Articles Editor
Family Mediation in Quebec: An “Access to Justice” Success Story
In recent decades, Quebec has quietly but steadily revolutionized access to justice in the context of family law. The province has done so through one of the most non-adversarial instruments in the legal toolbox: mediation. Family mediation in Quebec proceeds with only the parties and the mediator present: lawyers are not permitted. It is available to all separating couples in the province, whether or not they have children, and whether or not they are formally wed. This service is explicitly supported and subsidized by the provincial government. In fact, before couples may bring their disputes before a court, they must attend a session of family mediation [1].
It appears clear that the process has been largely successful. According to a study released by the Ministère de la Justice, 84 per cent of separating couples were able to reach an agreement through mediation—and a similarly high proportion were satisfied with the province’s mediation services. In an era when marriage breakdowns remain common (and the services of lawyers remain prohibitively expensive for countless Canadians), Quebec’s alternate route to equitable resolutions within family law can be regarded with hope.
Clarification: Association de médiation familiale du Québec v. Bouvier
Quebec’s family mediation process is not entirely divorced (pun intended!) from the formal legal sphere, but it is also designed to function largely outside of the courts. It was thus something of a surprise to have Canada’s highest legal bench weigh in on one of its finer points. In the recent case Association de médiation familiale du Québec v. Bouvier, 2021 SCC 54 (CanLII) (Bouvier), the Supreme Court of Canada offered a clarification on the legal ramifications of agreements reached through Quebec’s family mediation process. Writing for the majority, Justice Kasirer held that such agreements are subject to settlement privilege. This means that if necessary, courts can breach the presumed confidentiality of the mediation process to adduce the presence or scope of an agreement reached by the participating parties.
At first glance this decision is hardly revolutionary. After all, the bench was merely following its own precedent. As the Supreme Court held in 2014 in the influential Union Carbide decision, 2014 SCC 35 (CanLII) (Union Carbide), the disclosure of protected communications is sometimes necessary to prove that a settlement has arisen from mediation. This disclosure requirement extends to circumstances where the settlement is reached following (rather than during) mediation. This is necessarily the case in the Quebec context, where participants in family mediation can only create a legally binding contractual settlement after the process comes to an end. In Bouvier, the Supreme Court offered further clarification, explicitly aligning agreements formed through family mediation with other types of contracts. Family meditation is not “intrinsically different from civil or commercial mediation,” according to Justice Kasirer (Bouvier at para 43). They all share the same objectives, he reasoned: namely, to “prevent an anticipated dispute or resolve an existing one” (para 43).
This appears undramatic. Expected, perhaps. However, the Bouvier decision is neither as benign nor as narrow as it may seem. This post offers a critique of the Supreme Court’s approach to contracts within family law. In its extension of the settlement privilege to Quebec’s family mediation process, the Supreme Court has both trampled over their own established approach to family law (which has recognized its unique challenges) and problematically ignored how participants actually use and understand the family mediation process. Canadian families require better decisions from our highest benches—as attentive to lived realities as they are to the subtleties of contract law.
Family Law: Unique Circumstances, Unique Goals
Judges in family law have long recognized that the profoundly personal nature of family disputes—and the goal of long-term stability and peace between family members—requires a nuanced approach. It is certainly true, as the Bouvier Court observed, that those who turn to family mediation frequently hope to settle their differences. But is it “the primary aim” (Bouvier at para 8)? For many participants, an advantageous settlement agreement is a merely a marker of their wider aims of financial clarity, genuine communication, and emotional healing. Rather than simply breaking the family bond when a marriage ends, separation and divorce are now regarded as a moment of change. Especially for couples with children, the intimacies inculcated in marriage give way to new forms of—potentially lifelong—alliance. Families must learn to redefine themselves; necessarily participatory and consensual, mediation can help immensely in this process.
As Justice Karakatsanis astutely noted, writing for a three-judge concurrence in Bouvier, the Supreme Court has consistently recognized and respected the unique vulnerabilities and personal enmeshments intrinsic to family law cases. In the commercial and civil context, contract disputes are generally financial and largely short-term in nature. Parties seek to protect their interests, but their emotional well-being is rarely tied to the nature and outcome of the contractual process. While the ground-breaking decision in Pettkus v Becker, [1980] 2 SCR 834, 1980 CanLII 22 (SCC) (Pettkus) was not about contracts, the Supreme Court nevertheless emphasized the special character of family relationships and, in turn, family law. Family bonds, the majority held, are “not an economic partnership nor a mere business relationship, nor a casual encounter” (Pettkus at 850). The family, according to Justice L’Heureux-Dubé in her influential dissent in Canada (Attorney General) v Mossop, [1993] 1 SCR 554, 1993 CanLII 164 (SCC) (Mossop) “is not merely a creations of the law” (para 120). It is, rather, intrinsically social and personal—a crucial site for belonging and intimacy, as well as the social, economic, and emotional well-being of its members (Mossop at para 124).
Families turning to mediation have experienced that most primal and devastating of catastrophes: the dissolution of their home. Grief, extreme vulnerability, confusion, and anger are common reactions. Given this context, the Supreme Court has repeatedly held that it is unreasonable to expect that former spouses will approach settlement decisions objectively. For precisely this reason—as the court held in L.M.P. v L.S., 2011 SCC 64 (CanLII) (L.M.P.)—“contract law principles are not rigidly applied in the family context” (para 15).
The Importance of Confidentiality
Given the acknowledged complexity of family conflict resolution, it is problematic to threaten the purportedly confidential nature of mediation through the implementation of settlement privilege. Mediation is frequently seen as an ideal process to forge family resolutions because it prioritizes clarity and communication over “winning.” Removed from the formal setting of the court and shorn of lawyers’ adversarial presence, former spouses can speak candidly with each other about the reasons for the breakdown of their marriage and how they hope to move forward. This is an inherently communal process that depends on sincerity and openness. Research has demonstrated that the agreements that former couples achieve through mediation generally succeed, not because they are enforceable in court, but because they are the product of communal and active discussion (Bouvier at para 51).
In the Bouvier decision, the Supreme Court has threatened the privacy of mediation process. There are inherent risks to this approach: would stripping mediation of its necessary candour align it with the traditionally adversarial legal world? It seems possible. Former spouses, meanwhile, will continue to be disincentivized from turning to court for financial reasons. But, cognizant that their words could be repeated in front of a judge, these parties may shirk honesty in favour of tactical measures. Now that mediation is no longer defined by impenetrable confidentiality, in other words, it is no longer set apart from formal legal conflict. Indeed, Bouvier seems to open the door to mediation-related litigation.
Contract Law as Common Knowledge?
The Bouvier decision also represents a puzzling inattentiveness to the ways in which families actually understand and use the mediation process. In order to access family mediation services in Quebec, individuals must sign an agreement specifying terms of use. As the Supreme Court noted, the agreement makes it clear that mediation is completely confidential. Further, couples are warned that the “Summary of Mediated Agreements” that may be prepared at the end of the process cannot be utilized in court and does not “constitute a legal document nor an enforceable agreement” (Bouvier at para 15). Those who wish to formalize their agreement may do so after seeking legal advice. Justice Kasirer notes that, despite its plain meaning, the terms of use do not explicitly displace settlement privilege—and thus the Union Carbide settlement privilege must prevail.
It is notable that the couple at the heart of this dispute understood themselves to be involved in a confidential and non-contractual process. When their relationship came to an end after three years and two children, Mr. Bouvier and Ms. Bisaillon turned to family mediation. They reached an informal agreement during mediation, but—significantly—did not create a contract after the process came to an end. Ms. Bisaillon later attempted to seek greater financial compensation from Mr. Bouvier. The court held, however, that by cashing cheques from Mr. Bouvier, Ms. Bisaillon had rendered the mediation agreement contractually binding. Due to settlement privilege, Mr. Bouvier was thus able to access and present a summary of the mediation agreement as legal evidence in the court proceedings. It is, of course, possible to follow this circuitous logic if one prioritizes the norms of contract law. But within the human realm of mediation, it makes decidedly less sense.
Contextually, this strict adherence to contract law is both unfair and illogical. The mediation process is designed for laypeople. It allows them to take an active part in what may be their only substantive interaction with the legal system: the dissolution of their marriages. Usability and accessibility are built into the process. Users of family mediation are presented with relatively simply terms of use and freed from the expense and stress of lawyers and courts as they work through their problems. It is faintly ridiculous to insist that these individuals understand the minutiae of contract law—and realize, in turn, that the terms of use governing family mediation do not mean what they say in plain and explicit language. Confidential? Nope. Agreements reached through mediation cannot be presented in a court of law? Wrong. No binding agreements? Forget it: you just created a contract without knowing it.
Justice Kasirer notes that if individuals are concerned about the nature of the agreements they reach through the mediation process, they are encouraged to access legal advice during and after mediation. But is this a feasible solution to the problem created by the Bouvier decision? The implicit message is vaguely contradictory: here is an accessible, extra-legal, and cost-effective method of actively working through your separation or divorce. Because of its ease of use—and in an attempt to diminish problematic power dynamics—you are not permitted to have legal counsel present during mediation. But following Bouvier, you are encouraged to consult a lawyer at each step to ensure you are adhering to rules that no longer mean what they say.
Family Mediation and Access to Justice
In threatening the qualities that make it appealing to families, the Supreme Court also risks hobbling the effectiveness and popularity of family mediation—in Quebec, but also across Canada. This is problematic because the entrenchment and acceptance of family mediation in Quebec is generally regarded as a triumph in access to justice; indeed, the Bouvier Court refers to it as such. As far back as 2010, Chief Justice of Ontario Warren Winkler described Canadian family law as a “system in crisis” (Final Report of the Family Law Project, Law Commission of Ontario, at 5). Split into various jurisdictions, intimidatingly complex, and prohibitively expensive, family law in Canada has been described as inaccessible, extortionate, and overwhelming. But countless families must access it: divorce and separation show no signs of becoming less common.
If the situation has improved in the last decade, it is partially due to mediation. For both the legal system and the vast majority of families, extensive—and necessarily expensive—trials are untenable. Negotiation, arbitration, mediation, and counselling are thus valuable tools. Taken collectively, these alternative dispute resolution mechanisms allow Canadians to save time and money and, in the process, take an active role in shaping their families’ future. It should hardly be surprising that in a recent poll, the majority of respondents agreed that access to mediation services should be strengthened for individuals faced with separation and divorce. Yet mediation is defined by certain core characteristics: it is user-friendly and client-led; it is extra-legal and non-binding; and it is entirely confidential. In throwing these defining features into doubt, the Bouvier decision may render family mediation less popular—hardly ideal for an area of law where access to justice is a growing problem.
It is also worth noting that in complicating family mediation, the Supreme Court may be giving short shrift to those most vulnerable parties in the mediation process—children. Legal decisions related to divorce and separation have long emphasized the best interests of the child. In a process that can exacerbate power discrepancies, Canadian law recognizes that children’s needs and well-being must remain paramount throughout separation and divorce processes.
Research demonstrates that children benefit from family mediation. In lessening the adversarial quality of their parents’ separation or divorce, mediation can potentially lessen the trauma of family breakdown for children. Children who are permitted to participate in the mediation process feel a greater sense of agency—and, in turn, less anxiety. This is a powerful means of actualizing the UN Convention on the Rights of the Child, which states that children have a right to be heard in cases that are important to them.
In extending civil and commercial contract norms to the family mediation, the Supreme Court has extended the reach of contract law. Is it worth risking children’s well-being to do so? The Bouvier decision emphasizes the adversarial qualities of mediation and aligns it with the norms of the traditional legal world; in doing so, the decision risks the very qualities that make family mediation an appropriate—and powerful—way of increasing children’s involvement in family dispute resolution. Arguably, the less mediation is structured around the unique norms and expectations of family law, the less it can protect the vulnerable minors most prey to the power imbalances intrinsic to family conflicts. A confidential setting where full honesty is paramount and emotional understanding is prioritized is clearly beneficial for a child concerned about long-term family stability. But an adversarial environment tinged with the skillful calculations of formal legal conflict? It is easy to see how this would exacerbate anxiety and diminish juvenile agency. Contract law exactitude, in other words, may come at the expense of children’s emotional and social well-being.
What should we take away from the Bouvier decision? A recent blog post by Christin Schmitz suggests that the ramifications are not necessarily disastrous: once Canadians are made aware of the new terms shaping the family mediation process, they can adjust accordingly. We still have the opportunity to course correct before further damage is done to the country’s family law process and the related crisis in access to justice. The country’s courts need to do more to respect and reify the unique position of the family in the wider legal system. Of course, the Supreme Court of Canada must refine and reify the country’s laws; its primary task is necessarily legal. But the highest bench in the country does not exist in a vacuum: it belongs to a society and a people. Its decisions must reflect cultural changes and challenges—especially if those relate to access to justice.
[1] In emphasizing mediation, Quebec is at the forefront of a wider trend in family law. Recent changes to the federal Divorce Act require divorcing couples utilizing federal courts to engage in “family dispute resolution processes”—mediation, negotiation, collaborative law, or parenting coordination. In British Columbia, a party in a family dispute can require the other party to mediate the matters in dispute. Manitoba has recently piloted a program whereby separating couples in Winnipeg will be required to access mediation in family-related disputes. And in Saskatchewan, parties in some types of family disputes are required to pursue an approved form of family dispute resolution process before proceeding to trial.