Amendments to Ontario Family Law Rules noted to not have changed the role of expert witnesses, but rather restate their common law duties in recent case.
Asking the Court to Extend the Role of a Jointly Retained Expert
By: Philip Epstein
Mowers v. Acland, 2015 CarswellOnt 2795 (Ont. S.C.J.): Mackinnon J. It did not take long for Moore v. Getahun, 2014 CarswellOnt 298 (Ont. S.C.J.) to be noticed by the courts and no surprise that Justice Jennifer Mackinnon of the Superior Court of Justice in Ottawa quickly seized on some of the reasoning in Moore in order to deal with this motion before her.
In this case, the parties jointly retained a chartered business valuator to deliver a business valuation and an income report. Once it was delivered, the respondent wanted the business valuator to go back and calculate notional income tax payable by each party as though the business was liquidated around the date of separation, and in addition look again at the issue of a redundant asset, and finally calculate the husband’s notional income tax inherent in his real estate holdings and RRSP accounts.
The chartered business valuator declined to do any further work, unless it was on consent to both parties, and the wife did not consent.
The husband argued that the Family Law Rules signal a change to the role of experts. He agreed that the court has power to order the CBA to perform the requested task.
Justice Mackinnon disagrees. She notes that Moore v. Getahun made it clear that the amendments to the Rules did not introduce a change in the role of expert witnesses, but rather, the Rules were a restatement of the common law duties of expert witnesses intended to clarify and emphasize the exiting duties.
The husband relied on Perlin v. Danishevsky, 2011 CarswellOnt 1277 (Ont. S.C.J.) as a general authority to acquire the CBA to do further calculation. Justice Mackinnon disagrees and says specifically:
I do not regard the provisions of FLR 20.1 (1) and (3) as intruding so far into the adversarial process as to enable a court to require one party’s expert to essentially give advice to the other party.
As Justice Mackinnon notes it is the husband who needs to establish the income tax liability attached to his assets so that he may achieve a reduction in his net family property. It is he who needs the evidence of the tax liability, not the court. Justice Mackinnon also notes that:
Although Ontario does not yet have a rule specifically directed to the retainer of joint experts, there are strong policy reasons to encourage their use. These include saving time and expense, narrowing conflict, and promoting early resolution of disputes.
Enabling a court to expand the terms of a joint retainer without the consent of both parties would deter litigants from agreeing to retain a joint expert. I expect it would also deter experts from accepting joint retainers so as to avoid the possibility of being unwillingly placed in a position of conflict of interest with one or other client at some future point in time.
The lesson here is to make clear the scope of the joint retainer. There is no doubt that having a joint retainer may save time and expense, reduce conflict, and promote settlement. However, counsel and the expert need to be very clear as to the scope of the joint retainer. Notional taxes should be a consideration. If the parties want the CBV to review aspects of the joint retainer, or reconsider them, then there must be some specific mechanism in the joint retainer allowing this to occur. Absent that, the expert working under the joint retainer will have no authority to extend his or her work and counsel will be left to cross-examination to demonstrate some error in the report.