In the past, we have written often about the perils of self-representation. But as a family law litigant, it’s not enough to reflect on whether you are well-represented in your litigation; even if you have hired a lawyer, it’s important to ensure you don’t skimp on other resources that may be needed to best advance your case.
A good example is the decision on whether you want to use experts to help you assemble, organize, analyze, and put your evidence forward to the court.
The recent Ontario Court of Appeal decision in Farnsworth v. Chang, illustrates the potential downside of not doing so. There, the couple had amassed over $4 million in the 32 years they had been married. During their 12-day trial, the court heard evidence of their financial situation, which it then used to fashion awards relating to spousal support and equalization. On later appeal, the Court of Appeal reflected on the challenge that exercised must have posed to the lower court:
The trial judge referred to the evidence as “a tangled web of financial affairs.” Their several real estate properties had been acquired through a combination of savings and inheritances. Although they had the financial capacity to retain an expert to collect, organize and analyze their financial material, they relied on their own testimony as a basis for their claims. According to the trial judge, this involved their “best recollections and scattered documentation.”
In making the ultimate trial ruling, it’s clear that the judge would have benefited from having a coherent roadmap to the couple’s overall financial situation. And it begs the question of whether the outcome would have been different (and whether their later appeal would even have been necessary), if they had chosen to jointly spend a little on hiring an expert to round up the information.
But this raises a good question of where to draw the line between spending “a little” on an expert, versus spending far too much, particularly in light of what may be at stake, financially.
This was among the issues raised in an earlier case called Morton v. Morton. The husband and wife, having each hired an expert to assemble their financial documents in preparation for their upcoming divorce trial, had come to court because the wife wanted an advance on her equalization payment that would eventually be due to her from the husband. She needed the money now in order to pay the $14,000 her expert had charged her for a financial report. The husband claimed this fee was exorbitant – particularly compared to the wife’s expected equalization payment of about $284,000 – and insisted that she should pay for it herself. The husband, as the court put it, felt that “if she wishes to hire a very expensive firm and incur the cost of leaving no stone unturned, then she should bear that expense.”
The court agreed. In rejecting the wife’s claim for an advance on the equalization funds, it stated:
The [wife] is entitled to engage an expert of her choice; however, this does not mean that the [husband] must contribute beyond what is reasonable. If she wishes to have what was termed a “Cadillac” expert (and I make no observation as to whether cost equates to value) she can certainly do so provided she is prepared to pay any amount in excess of that which the [husband] has contributed or may be ordered to contribute.
For the full text of the decisions, see:
Farnsworth v. Chang, 2016 ONCA 442 (CanLII)
Morton v Morton, 2015 ONSC 4633 (CanLII)
