Collaborative Divorce Alberta Blog

How binding is the standard clause in a settlement contract, a.k.a. Minutes of Settlement, that requires the parties to attempt mediation or a 4 way negotiation meeting before being allowed to bring a court application? For the most part, Queen’s Bench Justices in family chambers have been upholding and showing respect for the requirements of that clause, and would adjourn or refuse to hear a court application when the person responding or defending against the court application brought that clause to the Justice’s attention. The Court of Appeal in Henderson  v. Henderson, 2016 ABCA 256, recently reversed the decision of a Queen’s Bench Justice who did not uphold that clause. In the Henderson decision, the Court of Appeal wrote that, “having agreed to this requirement, the [person bringing a court application] cannot simply ignore it, and there was no basis for the Chambers Judge to dispense with mediation. Dispensing with mediation merely rewards the [person who brought the court application] for breaching the provisions of the Settlement Agreement.” Court of Appeal decisions are binding on all Queen’s Bench Justices. So now all Queen’s Bench Justices, without exception, will need to uphold the requirements of that clause in a settlement contract....