Cost of experts in family law an access-to-justice issue

By Staff

Other jurisdictions in Canada could take a cue from British Columbia, which implemented a mandatory requirement for the use of joint experts on financial issues in family cases, writes Toronto family lawyer Gary Joseph in The Lawyer’s Daily.

He notes B.C.’s implementation of a mandatory requirement for the use of joint experts “is a change that is long overdue and one that should be the norm in family law matters across the country.”

Joseph, managing partner with MacDonald & Partners LLP, says serious issues relating to access to justice arise with the increasing use of expensive experts in family law disputes.

“Case law has moved to an almost mandatory requirement for business owners to obtain valuations performed by chartered business valuators and, in most circumstances of complex income, experts are now required to provide income analysis reports,” he writes in the online legal publication.

The recipient of such reports is almost always obligated to retain their own expert to prepare either a critique report or responding reports, Joseph writes, noting this dramatically adds to the cost of family litigation.

“While many concerns can be raised by the mandatory requirement of a joint expert, most of the concerns can be addressed by rules permitting a court to authorize the use of additional experts or responding experts in particular cases,” he writes. “A mandatory rule requiring joint experts would greatly reduce the cost of family law litigation and would eliminate the ‘hired gun’ approach of the past.”

Pointing to a 2018 family law matter, Joseph says Justice Ruth Mesbur’s biting comments support the implementation of a rule requiring jointly retained experts. He writes that Mesbur was so frustrated by the conflict among the experts that she stated: “It seems to me that in order to provide the court with truly independent, unbiased and reliable opinions, it would be preferable to require the parties to jointly retain a single expert, or, perhaps, to require the parties to fund an expert who would be retained by the court, at the parties’ expense.”

Joseph says such judicial commentary from a senior family law justice, who had years of experience in family law practice before taking the bench, should not be ignored.

“The entire family law experience has increasingly moved out of the affordability of most separating spouses,” he writes.

“For years, lawyers have been the target of blame, but in reality, it is often the cost of experts that well surpasses the cost of lawyers in these matters.”

Joseph notes experts do provide vital advice in family law matters, and their assistance to the court will continue to be needed. However, an enormous amount of time and money can be saved by implementing a mandatory rule for jointly retained experts.

“It is an access-to-justice issue,” he concludes.

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