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More Changes to Family Law Procedure — Rules Relating to Experts

 

More Changes to Family Law Procedure  — Rules Relating to Experts

Back in September, I told you about a new initiative in Ontario New Process Mandatory for Divorcing Spouses in Ontario, reference http://bit.ly/q7VuCt  ,  which requires family law litigants throughout the province to attend a Mandatory Information Program.   This government initiative is intended to inform such individuals about various aspects of the litigation process, and applies to contested divorce and matters involving custody, support, and access. (It does not apply to uncontested divorce or consent orders which incorporate the terms of an agreement or prior court order).

The implementation of this Program was accompanied by other improvements to adoption procedure, and to family law procedure in connection with certain forms and court processes. While some of the changes will only affect and be of interest to the lawyers who represent family law clients in court, some of them are worth mentioning as they inform and impact individual litigants who want to have their legal positions on matters such as custody and support presented in the most effective manner possible.

In particular, changes to the Family Law Rules – which govern the procedure used during family law trials – have resulted in the introduction of Rule 20.1 which clarifies the duties of expert witnesses who appear as part of the trial process, including those experts hired by parties to give opinions on custody and access of any child of the marriage.

First of all, the new Rule stipulates that every expert:

• has a duty to provide opinion evidence that is fair, objective and non-partisan,

• must ensure that this duty prevails over any obligations to the party who retained the expert;

• must provide opinion evidence that is related only to matters that are within the expert’s area of expertise;

• must provide a report of the results of his or her inquiry;

• must file that report with the court and provide each of the parties with a copy.

In connection with the contents of an expert’s report, the Rules now mandate that every report must contain:

• the expert’s name, address and area of expertise;

• his or her qualifications (including his or her employment and educational experiences in his or her area of expertise);

• the instructions provided to the expert in relation to the family law proceeding;

• the nature of the opinion being sought from the expert, and each issue in the proceeding to which the opinion relates;

• the expert’s opinion respecting each issue and, where there is a range of opinions given, a summary of the range and the reasons for the expert’s own opinion within that range;

• the expert’s reasons for his or her opinion, including,

    • a description of the factual assumptions on which the opinion is based,
    •  description of any research conducted by the expert that led him or her to form the opinion, and
    •  a list of every document relied on by the expert in forming the opinion.

• an acknowledgement of expert’s duty (relating to giving opinion evidence that is fair, objective and non-partisan) signed by the expert.

The changes relating to experts mimic those that are found in the Rules of Civil Procedure.  They do not apply to experts who are specifically appointed by the court to assist it in making custody and access assessments under the Children’s Law Reform Act, to expert assessments of children under the Child and Family Services Act, and to orders appointing the Office of the Children’s Lawyer in situations involving custody or access.

These changes to the Family Law Rules may seem overtly technical, but they are important because they guide and give format to the information that a family law litigant may put forth to the court via the opinion of a hired expert, on important matters such as custody and access of a child.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at  www.RussellAlexander.com