Feb 17, 2021

Family Law in Québec: Confidential Mediation Settlements

Bisaillon c. Bouvier, 2020 QCCA 115 (CanLII)
Following their separation, Isabelle Bisaillon and Michel Bouvier attended five mediation sessions and then signed the standard agreement proposed by the Association de médiation familiale du Québec at the start of the process, which provided in part the content of the process was to remain confidential. At the end of the process, the mediator prepared a summary of the matters agreed upon in mediation and sent it to the parties, who did not sign it or have a formal agreement drawn up. On application by Ms. Bisaillon for judicial partition into equal shares of a building held in undivided co-ownership through sale by judicial authority, Mr. Bouvier argued in defence a settlement existed: the summary of the matters agreed upon in mediation amounted to an agreement. In the Superior Court, Ms. Bisaillon argued the mediation process was subject to a fundamental principle of confidentiality, which meant evidence of the summary of the matters agreed upon and of anything arising from the mediation was inadmissible. The summary was not a contract and was not enforceable or binding if not signed or homologated, which was the case here. Moreover, the cashing of the cheques written by Mr. Bouvier did not amount to the acceptance or implementation of an agreement. The Superior Court, among other things, confirmed the existence of the parties’ agreement on the partition of the building and ordered its implementation. It found the summary of the matters agreed upon and any other related document or discussion to be admissible in evidence. Although the parties had agreed in their mediation contract the summary of the matters agreed upon was privileged, they had implicitly waived the privilege by implementing and relying on the agreement they had reached. The C.A. dismissed Ms. Bisaillon’s appeal.