Jointly-Retained Experts in Family Law: A Good Idea – But With Limits
In Mowers v. Acland, the separated couple decided to take an unusual (and cost-saving) step in their divorce litigation: They retained a chartered business valuator jointly. The valuator’s main task was to assess the fair market value of the shares in two corporations and to assess the husband’s income during a stipulated time period, for the purposes of determining his support obligations to the wife. His resulting report, which was submitted to the court, was intended to represent the couple’s joint position on the value of those items. This eliminated the need for each of them to hire a valuator individually, and to come to a resolution on any items that were valued differently by their respective experts.
Although this may have been a good idea at the time, the matter came back before the court when the husband wanted to use the same valuator to make additional calculations and re-assess previous ones –for the sole purposes of adjusting (downward) the husband’s support obligations.
The wife objected; she complained that this was not the envisioned role for the jointly-hired valuator and it was tantamount to him acting for the husband’s benefit only. She refused to give her consent to expanding the valuator’s mandate in this way and felt the better course was instead to have the husband hire a separate expert of his own if he wanted.
The court had to consider two questions: 1) whether it could order the jointly-retained valuator to perform additional tasks that would inure to the husband’s benefit only, and 2) whether it had the power to expand the valuator’s mandate even though the wife did not consent.
The court’s examined its authority in connection with experts, as delineated in Ontario Family Law Rules. Those Rules stated that the court’s power to appoint experts was limited to situations in which the court needed assistance to understand the evidence presented by the parties at trial.
Here, it was the husband (not the court) that needed assistance; in any case, on a close reading of the Rules, the court did not have the authority to broaden the valuator’s mandate so that he make assessments that benefited the husband only. Nor could it override the wife’s refusal to give consent: She had good reasons for opposing the husband’s request, in terms of her position on how the shares and other assets were to be valued. Finally, the court noted that the valuator had himself stated he would not act for the husband unless the wife consented; the court could not order him to change his stated position.
Having concluded that its judicial hands were tied, the court ended the judgment this way:
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.
In short: Courts may embrace the idea of couples retaining experts jointly but – absent the consent of both spouses – its power to broaden the scope of the retainer is sharply circumscribed. Nor can one of the spouses expand the joint retainer of his or her own initiative.
For the full text of the decision, see:
Mowers v. Acland, 2015 ONSC 1313 (CanLII)