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Sylvie Schirm

Quebec family law mediators, lawyers move to preserve secrecy in family mediations after SCC ruling

Tuesday, December 21, 2021 @ 9:27 AM | By Cristin Schmitz


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Family mediation centres and members of the family law bar in Quebec have told The Lawyer’s Daily they are making adjustments to try to preserve the confidentiality of the family mediation process following the Supreme Court of Canada’s recent determination that, in general, mediation communications may be disclosed  when needed to help prove the existence or scope of a mediated settlement.

On Dec. 17, 2021, the top court dismissed an appeal by the Family Mediation Association of Quebec: Association de médiation familiale du Québec v. Bouvier 2021 SCC 54.

In its key legal holding, the top court rejected 6-3 the association’s request to preserve total confidentiality of family mediations, holding rather that while family law mediations are generally confidential and protected by settlement privilege, as in civil and commercial law cases an exception is available when needed to help prove the existence or scope of a mediated settlement.

For the majority, Justice Nicholas Kasirer held that the settlement exception recognized in Union Carbide Canada Inc. v. Bombardier Inc. 2014 SCC 35, “generally applies” to communications in family mediations.

The majority judgment, which also hit the appellant non-profit association with solicitor-client costs capped at $15,000 (plus disbursements) is seen as a serious problem by family law mediators, and at least by some family law lawyers in Quebec, according to the appellant association’s counsel.

Sylvie Schirm, Schirm and Tremblay Avocats

Sylvie Schirm, Schirm and Tremblay Avocats

“We now clearly understand that the majority of the court has decided that confidentiality in family law mediation is not absolute, contrary to what people are led to believe when encouraged to participate in the family mediation process,” said Sylvie Schirm of Schirm and Tremblay Avocats in Laval, Que. “Therefore it is our client’s intention to duly inform its members — who come from all different professional fields — and advise them to make whatever changes are necessary to the contracts signed by the participants in order to protect confidentiality during the mediation process,” Schirm said.

Added her co-counsel, Marie-Elaine Tremblay, “and we, as family law attorneys, intend to inform the public at large of the implications of this judgment so that they may understand that when one party believes there is in agreement — written or verbal — he/she may breach the confidentiality in order to prove same.”

Counsel said their client appealed the case due to concerns about the impact the judgment of the Quebec Court of Appeal below would have on its members, and their duties, during the mediation process.

The association is “also extremely concerned about the impact it would have on the public at large who uses mediation in order to resolve family law disputes,” Schirm said.

“Our client was preoccupied that the judge of first instance had permitted the parties to testify about the mediation discussions and was also very worried that mediators could potentially be called to testify in court.”

Schirm said she and her partner are concerned, as lawyers, that the costs award against their client “will, in effect, throw cold water on non-profit organizations who wish to intervene on the important issues decided by our highest court.”

The top court granted the association permission to take over the appeal from one of the spouses in the case who did not have the funds to continue the litigation.

“Our client stepped in, given that the questions raised were of public interest, which the court recognized,” Tremblay explained.

Marie-Elaine Tremblay, Schirm and Tremblay Avocats

Marie-Elaine Tremblay, Schirm and Tremblay Avocats

“It goes without saying that our client — a non-profit organization represented on a pro bono basis, who was not asking for any monetary compensation — is extremely disappointed and astonished that its attempt to have this important question in law and issue of public importance interpreted by our highest court resulted in a bill of $15,000 plus disbursements.”

Tremblay noted “we cannot express our disappointment any better” than comments made by the three minority concurring judges, who held that discussions that occur within family mediation sessions must remain confidential, and cannot be disclosed or adduced as evidence, unless the parties specifically agree otherwise.

With the backing of Justices Rosalie Silberman Abella and Sheilah Martin, Justice Andromache Karakatsanis deplored as “unprecedented and unwarranted” the majority’s award of solicitor-client costs, noting the Supreme Court “has never ordered costs on a solicitor-client basis against a non-profit organization that raised an issue of public importance.”

“An award of full indemnity or solicitor-client costs is an extraordinary measure that effectively penalizes this non-profit organization for bringing forth an issue of obvious importance to an area of law that touches the lives of so many Canadians,” the minority said. “It can only deter such parties from doing so in the future.”

If you have any information, story ideas or news tips for The Lawyer’s Dailyplease contact Cristin Schmitz at Cristin.schmitz@lexisnexis.ca or call 613 820-2794.