After reaching a family mediation agreement with her ex-spouse, a woman changed her mind and decided to contest the agreement in court. The court had to decide whether she could sidestep the agreement and obtain more money from her ex-spouse. This article explains what happened.
The couple in question lived in a common law (also known as “de facto”) relationship between 2009 and 2012. They reached a mediation agreement which provided that the man would pay the woman $60,000 in exchange for transferring all the rights she held in a residence acquired in 2010. She would also receive $25,000 to compensate her for having stopped work for three years to care for the children.
The first payments were made by cheque in 2013. The woman cashed them, but relations between them deteriorated, particularly following a request by the woman for sole custody of the children.
In October 2014, the woman asked a court to award her half the value of the family residence. This was contrary to the mediation agreement. The court denied her request.
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Did you know? A mediation agreement is not an official judgment or a contract. However, if you and your ex-partner sign the agreement, it can become a contract, and you can be legally required to respect it by it. Usually, the agreement must be validated (or “certified”) by a judge to be enforceable. |
The mediation process is confidential
In opposing his ex-wife’s request in court, the man submitted a summary of the mediation agreement as evidence. This summary was drafted by the mediator and sent to the couple once the mediation was finished.
The catch is that the summary, as well as the discussions during the mediation, are considered confidential. Indeed, the parties, and anyone else participating in the mediation, commit to preserving the confidentiality of whatever is said, written, and done during the process.
The woman raised this principle of confidentiality to oppose the filing of the summary in court. Despite this, the court rejected her arguments.
An exception to confidentiality
The different judges of the Court of Appeal of Quebec who ruled on this case disagreed on the issue of confidentiality. However, the woman still lost the case.
There was a consensus among the judges that the parties’ verbal agreement was “binding” — just like a signed contract — because the parties had begun to carry out obligations resulting from the agreement. In doing so, the parties acknowledged the existence of the agreement and showed their intention to be bound by it.
In addition, the exchanges between the ex-spouses, following the mediation process, opened the door to an exception to the confidentiality rule. Confidentiality can be lifted when a binding agreement exists and one of the parties denies its existence or its terms. In this situation, the evidence necessary to prove the existence or terms of the agreement can be presented in court.
In this case, the woman not only cashed the cheques without contesting the existence of the agreement, she even mentioned the agreement in e-mails to her ex-spouse. The court therefore partially lifted the confidentiality rule in order to take note of the terms of the agreement.