Association de médiation familiale du Québec Appellant v. Michel Bouvier and Isabelle Bisaillon, 2021 SCC 54

SUPREME COURT OF CANADA Citation: Association de médiation familiale du Québec v. Bouvier, 2021 SCC 54 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) Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports .

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 — W hether 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. T he 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 n o 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 consistentlyrecognized the need for a discrete approach to address the challenges of resolving family disputes. It has resisted importing principlesthat apply to commercial settlements into the family context and has adjusted the general private law to this unique context. The tworealms have developed separately for good reason. The objectives of family mediation are much broader than simply promoting the settlement of a specific legal dispute.

Inparticular, 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 familialbreakdowns on a long-term basis, especially when children are involved. The aim of reshaping relationships carries much greatersignificance in the family context given the intimacy of family bonds.

Typically, family disputes cover a broad range of issues, from theprimary 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 theongoing ability of parents to communicate and resolve disputes. The objective of restructuring relationships is achieved through familymediation’s unique focus on promoting earnest discussions, dialogue and active listening.

In Quebec, this priority is reflected in theinterdisciplinary 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 equitableoutcomes. The process is designed for parties who, in the tumult of separation, inevitably bring to the table a host of emotions andconcerns that do not obviously accord with the making of rational economic decisions.

This objective plays a broader role in familymediation and negotiation than it does in commercial settings because the intimate nature of the relationship between the parties makes itdifficult to overcome potential power imbalances and modes of influence. After all, family mediation in Quebec aims to reach a fairsettlement, not just any form of settlement. Confidentiality furthers mediation’s participatory and consensual foundations, as well as the objective of reachingsettlements in the family context.

The effectiveness of family mediation in promoting settlements is predicated on the creation of aconfidential space where the parties can fully explore common ground on a diverse range of interrelated issues and engage without fearof legal repercussions. Confidentiality is essential for full and frank discussions, which are necessary to establishing functional familialdynamics going forward.

It is also critical for protecting vulnerable parties and compensating for power imbalances, in thatconfidentiality 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 mediatorsmay 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 toconfidential communications during family mediation sessions. First, the justification for the exception to settlement privilege — toencourage settlement of legal disputes — does not account for the unique context of family settlement, nor the broader objectives offamily mediation. Exceptions are applied with regard to their purpose and not mechanically. Encouraging the settlement of legal disputesis 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 offerand acceptance of a binding contract. In the present context, however, no offer and acceptance can occur during mediation sessions.

TheQuebec mediation regime, which prohibits the presence of lawyers, forecloses parties from reaching a binding settlement in mediationsessions — they are a forum for exploratory negotiations that may, but need not, lead to a settlement outside of mediation. It follows thatthe 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 greaterconfidentiality than is available at common law.

The question is whether an absolute confidentiality clause in a mediation agreementdisplaces the common law exception. In this case, the text and nature of the contract, as well as the circumstances in which it wasformed, lead to the conclusion that the parties intended complete confidentiality during mediation sessions, therefore displacing theexception to settlement privilege. Therefore, the

summary of mediated agreements was not admissible, as it contains protected confidential information. Thetrial judge erred in proceeding on the basis that a contract could be formed during the mediation sessions. He also erred in admittingconfidential information from the mediation sessions and the

summary of mediated agreements into evidence. I’s objection to theadmissibility of the

summary of agreements should be sustained. However, given the limited record before the Court, it is difficult toassess whether the evidence would otherwise have been sufficient to justify the trial judge’s conclusion regarding the existence of acontract; 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. TheCourt has never ordered costs on a solicitor-client basis against a non-profit organization that raised an issue of public importance.

Anaward on this scale is an extraordinary measure that effectively penalizes a non-profit organization for bringing forth an issue of obviousimportance 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, (SCC), [1991] 1 S.C.R. 374; referred to: Hryniak v. Mauldin,2014 SCC 7, [2014] 1 S.C.R. 87; Rick v.

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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; SableOffshore Energy Inc. v. Ameron International Corp., 2013 SCC 37, [2013] 2 S.C.R. 623; Caron v. Alberta, 2015 SCC 56, [2015] 3S.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, (SCC), [1993] 4 S.C.R. 3; Finney v. Barreau du Québec, 2004 SCC 36, [2004] 2S.C.R. 17; Friends of the Oldman River Society v. Canada (Minister of Transport), (SCC), [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: Rathwellv. Rathwell, (SCC), [1978] 2 S.C.R. 436; Pettkus v. Becker, (SCC), [1980] 2 S.C.R. 834; Richardson v.Richardson, (SCC), [1987] 1 S.C.R. 857; Pelech v. Pelech, (SCC), [1987] 1 S.C.R. 801; Lacroix v.Valois, (SCC), [1990] 2 S.C.R. 1259; Moge v. Moge, (SCC), [1992] 3 S.C.R. 813; Peter v. Beblow, (SCC), [1993] 1 S.C.R. 980; Bracklow v. Bracklow, (SCC), [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.

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Watson Hamilton, Jonnette. “Protecting Confidentiality in Mandatory Mediation: Lessons from Ontario and Saskatchewan” (1999), 24 Queen’s L.J. 561. Wiegers, Wanda, and Michaela Keet. “Collaborative Family Law and Gender Inequalities: Balancing Risks and Opportunities” (2008), 46 Osgoode Hall L.J. 733. Zweibel, Ellen B., and John C. Kleefeld. “Mediation”, in John C. Kleefeld et al., eds., Dispute Resolution: Readings and Case Studies , 4th ed. Toronto: Emond Montgomery, 2016, 291. 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. n o 282 (QL), 2020 CarswellQue 293 (WL Can.), affirming a decision of Moore J., 2017 QCCS 3788 , [2017] J.Q. n o 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 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. [ 9 ] 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. [ 10 ] 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. I would therefore dismiss the appeal. II. Background [ 11 ] Ms. Bisaillon and Mr. Bouvier were de facto spouses from April 2009 to July 2012. They had two children, born in 2009 and 2011. In 2010, they purchased a residence for the family. The notarial deed provided that the spouses were equal undivided co-owners of that immovable. Mr. Bouvier agreed to pay the costs for as long as Ms. Bisaillon was not working and was caring for the children. Later, they were to divide those costs equally.

The spouses disagree about their respective contributions to the purchase price of the residence and to the cost of its renovation. [ 12 ] In July 2012, they ended their relationship. Between August and December 2012, Ms. Bisaillon and Mr. Bouvier participated in a family mediation process dealing with child custody and support, the fate of the family’s residence and possible compensation for Ms. Bisaillon because of the time she had spent caring for the children rather than pursuing her career.

The parties signed the mediation contract proposed by the mediator, modelled largely on the standard contract prepared by the COAMF. [ 13 ] Clause 1 of their mediation contract provided that the goal of the process was to come to an agreement: [ translation ] 1. We the undersigned understand that the objective of mediation is to allow spouses who have separated, divorced or have made the

decision not to live together anymore to come to an agreement regarding the exercise of parental authority, access and the residence ofthe children, the financial responsibilities, the division of the family assets and the settlement of the matrimonial regime, if any. (A.R., at p. 94) [14] Clause 2 recognized this objective by setting out the matters in dispute. In cl. 3, the spouses stated that themediator’s role was to help them [translation] “negotiate an agreement”.

Clause 4 provided that the discussion between the spouses wasto take place in an [translation] “atmosphere of cooperation” and that each of them would “work towards finding solutions in their mutualinterest and more particularly in the best interests of the children”. Clause 8 dealt with the confidential nature of the mediation: [translation] 8. We acknowledge that the content of our meetings, of the interviews and of our file is confidential. We commit ourselves to not use asa proof in front of a court any document contained in the file, including the

Summary of Mediated Agreements, without the consent ofboth parties. The mediator cannot communicate this information to anyone except when the law expressly orders it. (A.R., at p. 95) [15] Following the five mediation sessions between Mr. Bouvier and Ms. Bisaillon, the mediator drew up a

summary ofmediated agreements, as provided for by the mediation contract and the instructions in the Guide. The purpose of that

summary was toset out the consensus resulting from mediation. Adopting the wording of the standard contract, cl. 10 of their mediation contract statedthe following about the

summary: [translation] 10. We are informed that the

Summary of Mediated Agreements prepared at the end of the mediation process will not constitute a legaldocument nor an enforceable agreement. It will serve to help the legal advisers who will be retained to prepare the appropriate legaldocuments. We are also informed that the signature of the

Summary of Mediated Agreements produces legal effects, even if it is notenforceable, and that it is preferable to obtain independent legal advice [before] signing it. (A.R., at p. 95) [16] The

summary of mediated agreements included a reminder of the confidentiality of the mediation documents,[translation] “including this

Summary of Mediated Agreements”, and of the undertaking not to use the

summary as proof in court withoutthe consent of both parties. [17] The parties did not sign the

summary of mediated agreements and never had any agreement relating to their unionhomologated by a court. [18] In 2013, Mr. Bouvier wrote Ms. Bisaillon three cheques, two of which specifically referred to [translation]“mediation”. Ms. Bisaillon cashed those cheques. In an exchange of emails concerning the children, the parties alluded to the terms of anarrangement they had made during mediation. In the last two emails that Ms. Bisaillon sent Mr. Bouvier, she denied the existence of anyagreement between them. [19] In October 2014, Ms.

Bisaillon filed a court action seeking equal partition of their former residence through a saleunder judicial authority. Mr. Bouvier filed a defence and a cross demand in which he argued that the

summary of mediated agreements,which determined the fate of the residence, was a transaction contract, within the meaning of the Civil Code of Québec, that he wasseeking to have homologated. In his view, the application for equal partition did not reflect the agreement entered into at the end of themediation process, as recorded in the

summary of mediated agreements. [20] In answer, Ms. Bisaillon raised a ground of inadmissibility, arguing that the

summary of mediated agreements couldnot be admitted in evidence because it was confidential under the parties’ mediation contract. She alleged that there had never been abinding agreement between the parties. III. Judicial History A. Quebec Superior Court, 2017 QCCS 3788 (Moore J.) [21] In a judgment rendered during the course of a proceeding, the Superior Court dismissed Ms. Bisaillon’s exception todismiss (2015 QCCS 5019). Nantel J. found that the confidentiality rule applicable to mediation did not make the

summary of mediatedagreements inadmissible in evidence. In her view, Ms. Bisaillon had acted as if there were a binding agreement between the parties andhad not objected to its partial performance. It followed that she had waived confidentiality and therefore that the

summary of mediatedagreements was admissible in evidence. [22] Ruling on the merits of the case, Moore J., as he then was, dismissed Ms. Bisaillon’s application for partition of theresidence. He also dismissed Mr. Bouvier’s cross demand for homologation of a transaction. However, he found that there was anagreement concerning the partition of the residence dated the day on which the mediator had given the parties the

summary. [23] Considering, on the merits, the issue of whether the

summary of mediated agreements was admissible in evidence, thetrial judge acknowledged that such a document is, in principle, subject to the rule of confidentiality. However, like Nantel J., Moore J.explained that the parties could waive confidentiality implicitly. Taking note of Ms. Bisaillon’s cashing of the three cheques and of theparties’ exchange of emails, the trial judge found that the parties had waived confidentiality [translation] “by performing and referring tothe agreement entered into” (para. 39 ).

[24] Furthermore, as an exception to settlement privilege, Union Carbide allows the admission of evidence that isnecessary to prove the existence and terms of a settlement. The judge therefore dismissed Ms. Bisaillon’s objection and admitted inevidence the

summary of mediated agreements and any other evidence that could establish the existence of the parties’ agreement. [25] However, the trial judge declined to homologate the agreement as a transaction, noting that, in the context of childcustody and support, an agreement dealing with matters of public order cannot be a transaction under the Civil Code of Québec.Accordingly, even though Mr. Bouvier’s cross demand concerned only the partition of an immovable, the judge preferred to take note ofthe existence of an overall agreement and to order its performance as far as such partition was concerned. B.

Quebec Court of Appeal, 2020 QCCA 115 (Doyon, Hogue and Roy JJ.A.) [26] Ms. Bisaillon appealed the judgment of the Superior Court. She challenged mainly the trial judge’s finding that shehad waived the confidentiality of the mediation process and his decision to admit the

summary of mediated agreements in evidence. [27] Vauclair J.A., sitting alone, authorized the Association to intervene in the appeal as a friend of the court, since hewas of the view that the case raised, among other things, [translation] “an important issue of public interest” relating to theconfidentiality of the family mediation process (2017 QCCA 1793, at para. 2 ). He gave the Association permission to[translation] “file a memorandum to provide the Court with guidance on the nature and legal scope of the discussions and of the

summaryof mediated agreements” (para. 4). [28] The Court of Appeal unanimously dismissed the appeal on the merits. Hogue J.A. wrote reasons with which Roy J.A.agreed; Doyon J.A. wrote concurring reasons. [29] After providing an overview of the legal framework of family mediation, Hogue J.A. noted that the process isconfidential because of settlement privilege, which protects communications between parties attempting to resolve a dispute.

CitingUnion Carbide, she explained that the settlement exception allows communications to be disclosed despite confidentiality if theirdisclosure is necessary to prove the existence or scope of an agreement. [30] In Hogue J.A.’s view, the parties had confirmed that the privilege applied through their mediation contract but had notdisplaced the settlement exception, although they had been free to do so. She also rejected the argument that the exception cannot applyin the family mediation context.

Because the purpose of family mediation is the same as that of civil mediation — to prevent or resolve adispute by entering into a freely negotiated agreement — the principles established in Union Carbide are equally valid in this context.The trial judge had therefore been correct to dismiss Ms. Bisaillon’s objections based on confidentiality. [31] However, Hogue J.A. found that Ms. Bisaillon could have raised another ground of inadmissibility to object to thefiling of the

summary of mediated agreements. Given that an unsigned

summary is a simple writing and not a contract, it may not beadmitted in evidence to prove a juridical act. Ms. Bisaillon had not raised this ground, and it was not for the trial judge to raise it of hisown motion (art. 2859 C.C.Q.). In any event, on the facts of this case, the objection would not have changed the result, because thetestimonial evidence and the post-mediation conduct of the parties could nonetheless have established the existence of a bindingagreement, even without the

summary of mediated agreements. [32] In his concurring reasons, Doyon J.A. wrote that the settlement exception recognized in Union Carbide does not applyin family matters unless it is shown that this was what the parties wished. In family mediation, unlike in civil or commercial mediation,parties cannot be represented by legal advisers during the mediation sessions.

It would therefore be unrealistic for a party who is alayperson, and who is also in the process of separating or divorcing, to understand the subtleties of the settlement exception. [33] On the facts of this case, however, Doyon J.A. found that the post-mediation exchanges of emails and chequesamounted either to recognition of the existence of an agreement or to an implied waiver of confidentiality. Like Hogue J.A. and the trialjudge, he was of the view that the testimonial and written evidence showed that there was an agreement between the parties. IV.

Issue and Grounds of Appeal [34] The issue in this appeal is whether the exception to settlement privilege that allows the existence or scope of asettlement to be proved, an exception recognized by this Court in Union Carbide, applies in the family mediation context.

Specifically,the Court must decide whether the family mediation process established by the legislature and governed, as in this case, by theCOAMF’s standard contract scheme excludes the exception recognized in that case. [35] According to the Association, there is absolute confidentiality in family mediation, which means that the exceptionmust be excluded once a mediation contract is signed, except where the parties indicate that it applies. The Association asks the Court toreach this conclusion because of the special nature of family mediation and the protection it must afford to vulnerable individuals.

TheAssociation also submits that the

summary of mediated agreements prepared by a mediator and the parties’ testimony may not beadmitted in evidence to prove the existence or terms of a settlement arising from family mediation. It further argues that the

summary ofmediated agreements is not a contract, but simply a working tool. [36] I note that the parties generally refer to the new Code of Civil Procedure in their factums, but also, on occasion, tothe former Code of Civil Procedure, CQLR, c. C-25 (“F.C.C.P.”).

When account is taken of the usages and practices specific to thestandard contract scheme in question, one observes that the norms relevant under the new Code are similar in many respects to thesources of the former law (the 2016 Guide states that “[t]he new Code of Civil Procedure largely includes the contents of the guide tostandards developed by the COAMF more than 15 years ago” (notice page)).

This is the case for the principle that private disputeprevention and resolution processes are confidential, which used to be in art. 815.3 F.C.C.P. and is now set out as a general principle inart. 4 N.C.C.P., supplemented by arts. 606 and 607 and by art. 617 for family mediation specifically. However, the outcome of this case,though closely tied to the law of civil procedure, depends on whether a judge-made rule of evidence developed in Union Carbide appliesin family mediation, a question that arises under both the new Code of Civil Procedure and the former law.

V. Analysis [ 37 ] To understand whether the spouses did in fact exclude the exception to privilege that would allow them to prove the existence or terms of an agreement, it is useful to begin by considering the place of mediation in the civil justice system and by looking at the specific nature of family mediation (A). Next, it should be reiterated that parties to family mediation enjoy additional procedural safeguards that can protect spouses (B).

Having regard to the very nature of family mediation, to these procedural safeguards and to the terms of the standard contract, 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. Systematically displacing the exception in the family mediation context would interfere with the main objective of the process, which is to reach a settlement.

Moreover, the COAMF’s standard contract, as adapted by the parties in this case, cannot be interpreted as excluding the exception (C). On the facts of this case, the parties could prove the existence or terms of an agreement by relying — to the extent necessary and subject to the rules of the general law of evidence — on what was said, written or done during mediation (D). A. Family Mediation Is a Private Dispute Prevention and Resolution Process That Is an Integral Part of the Civil Justice System

(1) Sources of Family Mediation Law [ 38 ] Both parties assert that the very nature of family mediation supports their respective positions. This apparent contradiction can be explained in part by the fact that the sources of family mediation law are sometimes difficult to identify and are, at first glance, somewhat disparate.

Among these sources are legislation and regulations, the will of the parties as expressed in their mediation contract, and practices and usages in the field, including the norms set out in the standard contract and in the Guide for certified mediators. [ 39 ] First of all, the general law of civil mediation — a set of norms of general application for any mediation — should be distinguished from the special law of family mediation , which applies to the category of mediation dealing with the resolution of a dispute between spouses or parents.

Largely governed by rules of public order laid down in the Civil Code of Québec , the Code of Civil Procedure and the Regulation respecting family mediation , CQLR, c. C-25.01, r. 0.7 (“ Regulation ”), the special law of family mediation is, in many respects, designed to recognize the fact that spouses negotiate a potential agreement “on the fault line of one of the most emotionally charged junctures of their relationship” ( Rick v.

Brandsema , 2009 SCC 10 , [2009] 1 S.C.R. 295, at para. 40 ). [ 40 ] Second, family mediation is heavily influenced by contractual practice and the usages established in the field over the past 30 years or so in Quebec.

Family mediation usages are set out partly in the Guide prepared by the COAMF. [1] The Guide states that the standards of practice were developed “[i]n order to insure high practice standards as well as harmonization in the quality of family mediation practices” (2016 Guide , at p. 5; 2012 Guide , at p. 5) and that, while they do not have the force of law, they nonetheless guide the practice of the family mediation profession as a “type of auto-regulation specific to this field” (2016 Guide , at p. 5; 2012 Guide , at p. 5).

A certified family mediator “must inform his clients of the existence of the[se] Standards” (2016 Guide , at p. 6; 2012 Guide , at p. 5). [ 41 ] Additional norms are set out in the standard family mediation contract appended to the Guide , which is offered to certified mediators as a model.

This standard contract is often adopted by spouses, as it was in this case, and governs several aspects of family mediation for which the law does not otherwise provide, such as the duty of mediators to prepare a “Summary of Mediated Agreements” as a tool “ to encourage reflection and to orient future legal actions” (2016 Guide , at p. 34; 2012 Guide , at p. 32). The standard contract also includes additional protections meant to address certain vulnerabilities of the parties that are unique to family mediation.

(2) Family Mediation: A Form of Participatory and Consensual Civil Justice Whose Primary Objective Is To Conclude an Agreement Resolving a Dispute [ 42 ] The Association submits that the specific context of family mediation, including the vulnerability of the parties, distinguishes it from commercial and civil mediation.

The Association thus reasons that the confidentiality scheme set out in Union Carbide is ill-suited to the family context, which requires what it describes as airtight or absolute confidentiality. [ 43 ] Mediation in the broad sense is a [ translation ] “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 a problematic situation in an amicable and mutually acceptable manner and, ideally, to restore or improve the relationship” (J.-F.

Roberge, La justice participative: Changer le milieu juridique par une culture intégrative de règlement des différends (2011), at p. 66; see also P.-C. Lafond and M. Thériault, “La médiation”, in P.-C. Lafond, ed., Régler autrement les différends (2nd ed. 2018), 103, at No. 3-1). Mediation is a confidential process that favours free and open discussions between the parties. It is true that family mediation takes place in a unique context, one that is often charged and emotional, which mediation law must take into account.

That being said, I do not consider family mediation to be intrinsically different from civil or commercial mediation in terms of its primary objective, that is, to prevent an anticipated dispute or resolve an existing one. [ 44 ] Entering into an agreement that resolves the parties’ dispute is the objective that defines family mediation, like civil or commercial mediation, as a form of civil justice (see arts. 605 and 613 N. C.C.P. ; see also art. 151.16 F. C.C.P. ).

According to the 2012 Guide , [ translation ] “[t]he objective of family mediation is to enable the spouses/parents to reach a fair agreement to which both parties have given their free and enlightened consent” (p. 6). This purpose is confirmed by the standard family mediation contract at issue in this appeal, which provides that the objective of mediation is enable spouses “to come to an agreement” on the various aspects of the conflict, as they have, themselves, defined it (cls. 1 and 2; 2016 Guide , at p. 28; 2012 Guide , at p. 26).

The focus is on the “consensus of the spouses/parents on the subjects discussed during mediation” (2016 Guide , at p. 22; 2012 Guide , at p. 20). Family mediators therefore do not dictate the outcome of mediation. They facilitate the parties’ negotiations to support “ the preparation of an agreement that will meet both the spouses’/parents’ needs and the needs of the children” (2016 Guide , at p. 7; 2012 Guide , at p. 6; see also standard contract, cl. 3; 2016 Guide , at p. 28; 2012 Guide , at p. 26).

Because of its participatory and consensual nature, mediation is thus recognized as being particularly well-suited to the resolution of family disputes (see, e.g., Comité consultatif sur le droit de la famille, Pour un droit de

la famille adapté aux nouvelles réalités conjugales et familiales (2015), at p. 81; Action Committee on Access to Justice in Civil and Family Matters, Access to Civil & Family Justice: A Roadmap for Change (2013), at pp. 11 and 19). Mediation, whether family, civil or commercial, can also be aimed at preventing a dispute (P. Noreau, Droit préventif: le droit au-delà de la loi (exp. ed. 2016), at pp. 111-12; L. Marquis, Droit de la prévention et du règlement des différends (PRD): Principes et fondements — Une analyse dans la perspective du nouveau Code de procédure civile du Québec (2015), at p. 42).

This component is part of the very definition of a dispute prevention and resolution process. In any event, the objective of mediation will always be to address a dispute, be it existing or potential. Without a dispute, mediation loses its purpose. [ 45 ] In some circumstances, particularly where parties dealing with a dispute have to maintain a relationship over the longer term, they may use mediation to improve the dialogue between them and to prevent conflicts beyond their specific dispute.

For example, family mediation can be aimed at [ translation ] “maintaining an ongoing relationship over a long period in cases where the parties do in fact have to continue dealing with each other, either as former spouses or as parents” (Noreau, at p. 112-13). This dispute prevention and resolution process is a particularly good fit for family law because some of the aspects negotiated, such as childcare responsibilities, tie in with the logic of continuity rather than a complete break (M.-C. Belleau and G.

Talbot-Lachance, “La valeur juridique des ententes issues de la médiation familiale: présentation des mésententes doctrinales et jurisprudentielles” (2008), 49 C. de D. 607, at pp. 612 and 614-15). [ 46 ] However, the relational dimension of family mediation and this so-called transformative purpose are not unique to this type of mediation (see M. Shea and S. Clairmont, “Le droit collaboratif: la diversification de la pratique”, in Service de la formation continue du Barreau du Québec, vol. 259, Développements récents en justice participative: la diversification de la pratique de l’avocat (2006), 105, at p. 130).

Civil mediation proceeds from this same logic, for example in the case of neighbourhood disturbances or conflicts between co-owners. It allows parties, as they resolve their dispute, to [translation ] “reshape their relationship” in order to “preserve a relationship in the future”, because “the neighbours will remain neighbours and will have to continue living side by side” (P.-C. Lafond, “Les troubles de voisinage, la médiation et le notaire”, [2018] 1 C.P. du N. 81, at pp. 95-96).

Similarly, since co-owners will have to see each other regularly following the resolution of their dispute, [translation ] “it is also essential that the ‘personal’ relationship between the individuals involved in the dispute be preserved and maintained over time” (S. Chianetta, “Médiation et arbitrage en copropriété”, in Service de la qualité de la profession du Barreau du Québec, vol. 447, Développements récents en droit de la copropriété divise (2018), 275, at p. 325).

In employment law as well, civil mediation serves to defuse interpersonal conflicts between coworkers with a view to [translation ] “improving the relationship” and giving them a “safe discussion space” to “restore their relationship” (M. Flynn, “Les facettes méconnues de la médiation en 2016”, in Service de la formation continue du Barreau du Québec, vol. 422, Développements récents en matière de cessation d’emploi et d’indemnités de départ (2016), 75, at p. 85). [ 47 ] This relational logic can also characterize commercial mediation.

For example, it may be an aspect of dispute resolution between franchisors and franchisees where legal persons seek, beyond a specific dispute, to [translation ] “maintain and even strengthen the quality of the relationship and communications” between them (J. H. Gagnon, “Les meilleurs outils et pratiques de règlement des différends en franchisage depuis l’entrée en vigueur du nouveau Code de procédure civile ”, in Service de la formation continue du Barreau du Québec, vol. 420, Développements récents en droit de la franchise (2016), 1, at p. 31).

Article 605 N. C.C.P. in fact provides that, in any type of mediation, the mediator must not only help the parties reach an agreement but must also encourage them to engage in dialogue and to communicate their respective needs. [ 48 ] To be sure, the issues of public order that arise in family cases must not be conflated with civil and commercial conflicts, but it must be acknowledged that the relational dimension of dispute resolution is not exclusive to family mediation. In any form of mediation, the dialogue established to reach a settlement is a mechanism for addressing a relationship conflict.

It is therefore essential to give parties the tools they need to give effect to their compromise and, whether or not a settlement is reached, to maintain their relationship going forward. [ 49 ] In addition, family mediation, like the other types of mediation, is 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 (M.-C.

Belleau, “La médiation familiale au Québec: une approche volontaire, globale, interdisciplinaire et accessible”, in Lafond, Régler autrement les différends , 299, at No. 8-12; see also art. 2 N. C.C.P. ; J.-G. Belley, “Une justice de la seconde modernité: proposition de principes généraux pour le prochain Code de procédure civile ” (2001), 46 McGill L.J. 317, at pp. 360-63). Indeed, mediation is based on an [ translation ] “agreement culture” (Roberge (2017), at p. 8; see also Marquis, at p. 90).

This culture finds expression at two stages: first, when the parties establish a dispute resolution process on a consensual basis, through the mediation contract itself and, second, if they work out an agreement to end the dispute, through the settlement contract . The purpose of the first contract is to create the framework in which the parties can enter into the second. The

interpretation of the first contract makes it possible to determine how the parties can prove the existence and scope of the second contract, if any, setting out the resolution of their conflict. [ 50 ] It is true, as the Association notes, that 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 mediation sessions ( art. 617 para. 1 N. C.C.P. ; see also art. 814.7 F. C.C.P. ) .

However, the absence of lawyers during the sessions is not incompatible with this idea of participatory justice and this agreement culture. [ 51 ] The legislature’s purpose in preventing legal advisers from being present during family mediation sessions is in fact to ensure [ translation ] “that the parties really have the floor” ( Ministère de la Justice, Commentaires de la ministre de la Justice: Code de procédure civile,

chapitre C-25.01 (2015), art. 617 ). Belleau writes that family mediation is based on an “empowerment” model that enables spouses to take charge of the resolution process that concerns them; it is above all they who speak, rather than a third-party decision maker or lawyers acting on their behalf (No. 8-8). This is intended to facilitate their future cooperation and to give them greater accountability for any undertaking they make (see Noreau, at pp. 112-13).

Authors note that mediation is particularly well-suited to family conflicts [ translation ] “because it helps to restore better communication between spouses and to preserve their relationship in the future in cases where there are children” (Lafond and Thériault, at No. 3-39). Moreover, studies show that spouses are more likely to adhere to a settlement they have actively shaped (G. A. Legault, “La médiation et l’éthique appliquée en réponse aux limites du droit” (2002-2003), 33 R.D.U.S. 153).

[52] Finally, the coming into force of the new Code of Civil Procedure in 2016 has resulted in dispute prevention andresolution processes, including family mediation, being recognized [translation] “as justice processes with the same importance” as thetraditional court process (L. Chamberland, ed., Le grand collectif: Code de procédure civile — Commentaires et annotations (5th ed.2020), at p. 8; Commentaires de la ministre de la Justice, art. 1).

This significant shift in Quebec’s legal culture was expressly undertakenby the legislature as an [translation] “access to justice” measure designed to make the system “much more accessible, faster, lesscumbersome, less expensive” (Le grand collectif, at pp. 8-9, quoting former Minister Bertrand St-Arnaud; see also Roberge (2017), atp. 36; Civil Procedure Review Committee, Une nouvelle culture judiciaire (2001), at p. 34).

Of course, the question of the relativequality of the justice ensured by private dispute prevention and resolution processes in comparison with that rendered by the traditionalcourts is beyond the scope of this appeal. Nevertheless, it is clear that mediation facilitates access to settlements in family matters andthat it is a dispute resolution process that is not only permitted but encouraged.

Indeed, the Quebec government, through the familymediation service it offers, promotes affordable access to dispute resolution by making the information session and five family mediationsessions free where the interests of children are at stake. In addition to these fully subsidized sessions, the fees of certified mediators arefixed by regulation (see Regulation, ss. 10 and 10.1; see also, for spouses who have no common dependent children, Regulationrespecting a Family Mediation pilot project for couples who have no common dependent children, CQLR, c. C-25.01, r. 6.1). B.

Protection of the Interests of Spouses, Parents and Children in Family Mediation [53] The Association submits that dispute resolution in the family context presents a serious risk of abuse for a vulnerableparty, a risk of a different nature than in civil or commercial mediation. In Miglin v.

Miglin, 2003 SCC 24, [2003] 1 S.C.R. 303, a caseconcerning the validity of contracts negotiated by spouses further to a divorce, Bastarache and Arbour JJ. noted that negotiations enteredinto upon the breakdown of a marriage may make the parties particularly vulnerable. “Unlike emotionally neutral economic actorsnegotiating in the commercial context,” they wrote, “divorcing couples inevitably bring to the table a host of emotions and concerns thatdo not obviously accord with the making of rational economic decisions” (para. 74).

They also cautioned against “the power imbalance”that may vitiate the bargaining process and pointed out that the absence of legal counsel in this context may amplify the parties’vulnerability (para. 83). [54] These concerns are legitimate. Even though Miglin involved a divorce and the parties in that case did not go throughmediation, the problem of vulnerability raised by the case is a real one, and family mediation is not immune from this problem. [55] However, procedural safeguards that are inherent in family mediation, as a mechanism of participatory justice, serveto counter this vulnerability.

These safeguards arise from legislated norms, some of which are of public order, from family mediationpractice, as shown by the Guide, and from the contractual will of the parties, as expressed in the standard contract. By voluntarilyentering into a mediation contract that confers protections not otherwise provided for by law, the parties are therefore themselvesresponsible for establishing a number of procedural safeguards. As we will see, these safeguards are implemented by two main actors:certified mediators and, in some circumstances, judges.

(1) Independent Legal Advice [56] Relying on the concurring reasons of Doyon J.A., the Association argues that the vulnerability of the parties infamily mediation is compounded by the absence of independent legal advisers during the sessions.

In its opinion, this concern is uniqueto family mediation because of the harmful consequences of the power imbalance observed in connection with agreements entered intoby spouses when their relationship ends. [57] In Miglin, the Court noted that in determining the validity of a separation agreement negotiated by spouses, it isessential to consider whether either party was vulnerable.

Such vulnerability can be “effectively compensated by the presence of counsel”during the negotiations (para. 83). [58] It is true that parties to family mediation do not have the option of being assisted by a lawyer or notary during thesessions, unlike in a negotiation process such as the one in Miglin. However, this does not mean that the vulnerability of such partiescannot be effectively “compensated” for, as they will have many opportunities to obtain legal advice.

In particular, nothing prevents theparties from consulting a legal adviser prior to or in the course of mediation (Belleau and Talbot-Lachance, at p. 618). Because theprohibition in art. 617 N.C.C.P. against using the services of legal advisers applies only during mediation sessions, spouses are thus ableto obtain legal advice before signing their mediation contract, including to assist them in understanding the confidentiality rules.

Thestandard mediation contract also provides in its addendum that each spouse reserves the right to consult a legal adviser “during themediation process” (2016 Guide, at pp. 32-33; 2012 Guide, at pp. 30-31), and the mediation contract signed by the parties in this casestates that an independent legal consultation is recommended before the parties sign the

summary of mediated agreements or have itconfirmed. As well, as Hogue J.A. noted, [translation] “mediators generally recommend that parties consult a legal adviser beforebinding themselves firmly. This was the case here” (C.A. reasons, at para. 72 ).

Spouses may also suspend a session in order toconsult a lawyer or any other person, and mediators have a duty to [translation] “suggest that advice be sought from a legal professional”if they perceive an “imbalance” between the spouses or if one spouse “is about to negotiate an unfair agreement” (2012 Guide, at p. 11;see also 2016 Guide, at p. 12; art. 618 N.C.C.P.; art. 814.7 F.C.C.P.). The absence of legal advisers during the sessions is therefore by nomeans fatal to considerations of fairness in family med

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