A New Look at Settlement Privilege in Canadian Family Law
Mediations are exceedingly common in family law and only continue to become more so. The goal of mediation is to have an impartial 3rd party present to assist and encourage the parties to discuss issues openly for the purposes of coming to an agreement. The agreement is not legally binding until it is submitted to the Court. Information discussed and disclosed during the mediation is typically privileged and cannot be used as evidence should the mediation fail and the parties decide to go to Arbitration or to Court. In 2014, the Supreme Court released Union Carbide Canada Inc v Bombardier, 2014 SCC 35, which allowed the typically undisclosable mediation communications to be disclosed for the purpose of proving there was an agreement or to determine the scope of the agreement. This is called the settlement exception.
Family law is an area of law that has a high percentage of self-represented individuals relative to other areas of law. Accordingly, there are many self-represented individuals who are attending mediation without legal counsel. That fact, along with the high percentage of vulnerable individuals participating in family law mediations, has caused family law mediation to be viewed as somewhat separate from mediation in other areas of law. Due to the highly emotionally charged nature of family law negotiations, and the amount of unrepresented individuals, communications that occur during mediation were viewed as completely undisclosable.
A recent case from the Supreme Court of Canada discussed family law mediation. In Association du mediation familiale du Quebec v Bouvier, 2021 SCC 54, the SCC determined that privileged information from a mediation may be disclosed to the Court for the purposes of proving the existence of an agreement or to prove the scope of an agreement. The Court stated a paragraph 115:
It follows that, under the standard family mediation contract scheme, all communications made by spouses for the purpose of resolving their dispute will remain completely confidential unless one of the recognized exceptions applies. The settlement exception will apply only if (1) the spouses reach a settlement after the process ends and after they are given the summary of mediated agreements, once they have had an opportunity to consult an independent legal adviser, and (2) one of them denies the existence or terms of the agreement or objects to its implementation. In addition, even where these two conditions are met, the settlement exception will allow disclosure only of the communications that are necessary to establish the existence or terms of the agreement, not of all communications (Union Carbide Canada Inc v Bombardier, 2014 SCC 35 , at para. 35). There should therefore be no fear that private communications concerning the parties’ relationship will be revealed: if such communications are not necessary to prove the settlement, they will be shielded from the exception and will remain confidential forever.
The Alberta Court of King’s Bench has also recently affirmed Bouvier in Alberta. It should be noted that disclosure of privileged documents is not guaranteed. The Court must be satisfied that the parties participating in the mediation have sought independent legal opinions or can otherwise prove they are entering into the agreement not as a vulnerable party and that there must be an agreement reached. Without those two elements it is unlikely for the Courts to allow the disclosure of privileged communications. In addition, parties may disallow the settlement exception from applying in a particular case by specifying so in the agreement contract.