Family Law Rules: Changes on Expert Witnesses
In September 2019, the Family Law Rules were updated to provide expanded direction on the use of expert evidence. Four months later, we can reflect on some impact as reflected in case law.
(a) First, how we got here
It may be recalled that prior to these amendments, the last large amendment to Rule 20.1 was in September 2011 and included some of the same terms that are now expanded upon in the September 2019 amendments. What happened?
Without delving too much into history, 2015 was the “year of the expert” as the Court of Appeal weighed in on the admissibility of an expert’s working papers and drafts (Moore v. Getahun, 2015 ONCA 55 (CanLII)); admissibility of a critique report (M. v F., 2015 ONCA 277 (CanLII)); and the differing obligations between “Litigation Experts”, “Participant Experts” and “Non-Party Experts” (Westerhof v. Gee Estate, 2015 ONCA 206 (CanLII)). Meanwhile, the Supreme Court provided a detailed analysis on the stages of addressing expert bias (White Burgess Langille Inman v Abbott and Halibuton Co., 2015 SCC 23 (CanLII))
The role of experts, however, continued to be a large recurring problem. Late 2017 and 2018 had a string of family law decisions that put expert evidence in an uncomfortable glaring spotlight.
- Looming over the entire industry is the Lang Report arising from the Motherisk inquiry. In Catholic Children’s Aid Society of Toronto v. R.M., 2017 ONCJ 661 (CanLII), Justice Sherr ruled that the admissibility of a urine test on an interim protection motion was not permitted without a fulsome voir dire. It cannot be overstated that we collectively had been caught out for blindly relying on “expert” opinion evidence, to some devastating effect, and the archetypical pendulum began its swing in the other direction.
- In Fielding v. Fielding, 2018 ONSC 5659 (CanLII) Justice Monahan was confronted with an expert on income analysis whom the court found took “untenable” positions and “was simply acting in accordance with instructions from his client, as opposed to exercising his own independent judgment as to what was reasonable in the circumstances”. The court took the dramatic step of discussing whether to exclude the evidence entirely but ultimately permitted the report and attached to it minimal weight.
- The Ontario Court of Appeal in Kuczera (Re), 2018 ONCA 322 (CanLII) dealt with a mid-divorce proceeding bankruptcy, where the bankrupt failed to make payments to the trustee notwithstanding a settlement received in the divorce. He relied on a string of letters from a treating psychiatrist to evidence his mental health, each letter expanding on the last, at the request of his counsel. The Court reiterated its findings in Westerhof and found that the fact that the psychiatrist was the appellant’s treating psychiatrist was not a proper basis for rejecting the evidence as “the asserted lack of independence is not of the type that would normally constitute a disqualifying factor under the Mohan criteria”, but it might go to the weight of evidence.
- In G.S.W. v. C.S., 2018 ONCJ 286 (CanLII) Justice Sherr systematically reviewed, excluded and otherwise discounted various (non-CLRA s. 30) reports related to parenting issues (e.g. purported attachment between parent and child), declaring “This decision will provide a message of caution to the family law assessment community before they accept a unilateral request to provide expert evidence in contested custody matters. It should also be a message that assessors not only need to contain their opinions to their fields of expertise, but that they should not give opinions on matters where they have inadequate information to provide reliable opinions.”
- The decision of Halton Children’s Aid Society v. J.B. and D.T., 2018 ONCJ 884 (CanLII) played out in the media, where the court found the claimed qualification as a “registered clinical psychologist” of a registered school psychologist was material to the professional providing a CFSYA parenting capacity assessment. The expert was denied status to provide expert evidence notwithstanding “over 100” previous admitted reports.
- As the year concluded, in Plese v. Herjavec, 2018 ONSC 7749 (CanLII), Justice Mesbur was confronted with not one, but two sets of opposing experts – property appraisers and business valuators – whose conclusions aligned “squarely” with their client’s positions. At para 141 she states:
This case highlights in very stark fashion the continued problems with expert evidence. Notwithstanding the experts’ clear duties, they nevertheless end up supporting the position of the party who hired them. The changes to the expert rules, and the requirement for experts to acknowledge their duties of independence and impartiality were supposed to solve the problem of experts simply being “hired guns”. Sadly, the problem remains.
(b) The September 2019 Changes in Expert’s Evidence
Now, the Family Law Rules (20.1, 20.2 and 20.3) are amended/updated to more reflect the Rules of Civil Procedure, and the obligations have been further delineated between types of experts: “joint litigation experts”, “litigation experts”, “participant experts” and “court appointed experts”. The Advocates Society compiled a quick list of all the changes, worth looking at. The changes can be said to ensure that (i) expert reports are provided on a more timely basis, now before the settlement conference; (ii) the documentation the expert relies on are listed and delivered together with the report; (iii) the court is empowered to limit an experts evidence that strays from their area of expertise; (iv) the use of jointly retained experts is mandated for custody matters and is otherwise encouraged by discouraging critique reports without leave. When so ordered, parties’ cooperation in the joint retainer process can be enforced; (iv) the expert provides a description of any research or test conducted … and an explanation of the scientific principles underlying the test and of the meaning of the test results; and (v) where relevant, the opinion must include “a description of any substantial influence a person’s gender, socio-economic status, culture or race had or may have had on the test results or on the expert’s assessment of the test results.”
It cannot be overstated that the Rules send the message, explicitly (again at 20.1(3)) and implicitly (by the required information to provide with the report) that all experts owe their duty first to the court.
(c) Caselaw Update
(i) The line where a Participant Expert becomes a Litigation Expert
LaRoche v. Lynn, 2019 ONSC 6602 (CanLII) was a motion to change brought by a former husband who wanted to retire at age 60 and terminate the spousal support he was paying for 20 years arising from a 12.5 year marriage with one child. The recipient former wife relied on a letter from her long-standing psychiatrist to evidence her continued need for support based on her deteriorating mental health. The court quoted the impugned doctor’s conclusions that:
“I am absolutely certain that because of her ongoing mental health problems at the present time, she could not possibly hold down a job. While this does not mean that she can never be employed, I feel that for the next two or three years at least, she will remain disabled and unable to work.”
The former husband objected to the admission of that paragraph because it was not in affidavit form and, second, it failed to comply with the Rules governing the content of expert reports. The court reviewed the caselaw in the context of the Rules of Civil Procure and the Evidence Act. Ultimately, though, the admissibility issue was whether, under the new Family Law Rules, such a doctor was a “participant expert” or a “litigation expert”. The Rules have differing requirements for each, and a participant expert’s requirements are merely “any written opinion” (Rule 20.2(14)) which is significantly less onerous than for a litigation expert (Rule 20.2(6)). The court found the psychiatrist was a “participant” and the opinion did not need to put in an affidavit. However, the comments cited above strayed well past the doctor’s area of expertise and into the opinion of a litigation expert and to that extent was not admitted.
A similar result occurred in Nadon v. Whissell, 2019 ONSC 7167 (CanLII) where a one page “certificate” from a treating physician was filed on a motion to change by the support payor. The certificate included the payor’s medical background as well as “opinion evidence about the effect of morphine intake generally” which the court “disregarded completely” as it was not properly introduced into evidence in accordance with Rule 20.2(2).
(ii) The Expert Rules apply to Motions to Change
Interestingly, also at issue in LaRoche was whether the new requirements applied to motions in addition to trials, which is also now explicitly addressed at Rule 20.2(15). The court read in “motion to change” but those words are not in the rule which applies to trials, motions “for a temporary order under rule 14 or a motion for summary judgment under rule 16”. Note the definition of a “trial” at Rule 2 is just that it “includes a hearing.”
(iii) Rule 20.3(9): The Expert Rules do not apply to the OCL
While directly reflected in the new rules, in Artichuk-Murphy v. Murphy, 2019 ONCA 921 (CanLII), the appellant contended that the trial judge erred in relying on the “opinion evidence” of the investigator from the Office of the Children’s Lawyer as it was not proffered as expert evidence on the subject of alienation. The Court affirmed its decision in A.M. v. C.H., 2019 ONCA 764 (CanLII) that held that expert evidence is not required on either a finding of alienation nor how to address it. Rather, the evidence of an investigator is factual observations which the trial judge is entitled to take into account in reaching conclusions. As stated in there: “This is the stuff of which custody trials are made.”
(iv) Voice of the Child report as a Court appointed Expert
Tehrani v. Mahtab Pour, 2019 ONSC 6570 (CanLII) was a reported trial management conference Endorsement on an application to determine Ontario’s jurisdiction, where a child residing in Dubai (a non-Hague country) was brought to Ontario by his mother. The court arranged for an expedited trial and – having regard to Balev – broached the topic of the court retaining its own “Voice Of The Child” expert pursuant to Rule 20.1(3) of the Family Law Rules. Usefully, the court defined this term as “an expert with a social work/mental health background for the purpose of meeting with the child and delivering a report resulting from that meeting”. The court found that the parties could not agree on the professional nor could they agree on cost sharing. As there was insufficient time to the hearing date to allow a motion on this issue, the court referred them to the OCL only (if they accept the case) “notwithstanding that the Court would appreciate receiving such evidence”.
(v) Paying for a non-Court Appointed Expert
Rule 20.3(2)-(4) deal with payment and security for a court appointed expert. Rule 20.3(9)(a) specifically states that the Rule does not apply to CLRA s. 30 Assessment Reports. Similarly, the issue of sharing the cost of a joint retainer, including a Rules mandated jointly retained expert for a custody matter is not explicitly addressed. Rather, the recourse for payment of any of the above is through interim disbursements. See for example, Vo v Voong, 2019 ONSC 5061 (CanLII) which dealt with payment of a CLRA Assessment. It would be necessary on a motion for joint valuation experts to rely on Rule 20.2(9) which provides for a motion for such directions.
(d) Effect on FDR
These new Rules amendments will have direct impact on dispute resolution outside the court system. The very recent decision of A.P. v. L.K., 2019 ONSC 7256 (CanLII) is a standalone fresh evidence motion within an appeal of the highly publicized arbitration award regarding children’s vaccinations. Playing a large role in this decision was the 30-day to hearing timeline to deliver the successful party’s expert reports, which was breached by that party and therefore impacted on the responding party’s ability to provide a response to that evidence. As well, the admissibility of the children’s doctor’s additional evidence (on the issue of a child’s capacity to consent) was decided on whether the evidence fell within the role as participant expert or litigation expert. Although these types of issues predate the newest amendments, FDR professionals now have a clearer framework, some standards, and a vocabulary with which to address this tricky area of law.