Association de médiation familiale du Québec c. Bisaillon, et al.
The Supreme Court examines the confidentiality of the summary of agreements in family mediation
Brossard, on the 16th of March 2021. - On March 18, 2021, the Supreme Court of Canada will hear the case of the Association de médiation familiale du Québec(AMFQ) against Bisaillon and Bouvier. The Court will consider an important issue that affects Quebec families using the family mediation service: the confidentiality of the family mediation process, including the summary of the agreements.
What is at stake?
The family mediation process is confidential. At the end of the process, the family mediator usually prepares a summary of the agreements that he sends to the ex-spouses. This summary resumes in a structured way the reflection exercise undertaken by the former spouses during the mediation. It is accompanied by an opinion recommending the consultation of qualified professionals in order to obtain independent advice, of a legal or other nature and information on the steps to be taken in order to draft the procedures to ratify the agreement by the court1.
In the context of the case opposing Bisaillon and Bouvier, the confidentiality of the mediation process was called into question. In fact, the court allowed the ex-spouse who was trying to prove that an agreement had been reached in mediation, to produce in the court file a summary of the agreements and e-mail exchanges, in addition to allowing him to testify in the hearing as to what was discussed during the mediation. The two parties had signed a mediation contract which guaranteed the confidentiality of the mediation process and the summary of the agreements.
The summary is not an agreement.
Since participants do not have the right to go to mediation with their lawyer, the AMFQ believes that the summary - like the whole of the mediation process - must remain a tool covered by absolute confidentiality. The AMFQ involved itself in the legal debate to always ensure the confidentiality of the mediation process.
The summary is a tool which, according to the COAMF2 should be used to generate other options following the legal consultation or to facilitate the review if there are changes in the life of one or the other of the parties/spouses/ parents or children.
The AMFQ wishes to sincerely thank the legal firm of Schirm & Tremblay Lawyers for their help and support in this cause.
Superior Court decision
Court of Appeal decision
1 Ministère de la Justice – Content and procedure for the mediation session
2Comité des organismes accréditeurs en médiation familiale –Standards of practice in family mediation
Source: Mrs Lyse Soucy
Social worker and president of the AMFQ
Tel.: (514) 990-4011 - Free of charge: 1-800-667-7559