CBV/FDRIO Conference February 13, 2020
On February 13th, 2020, FDRIO and the CBV Institute (the professional organization of Chartered Business Valuators in Canada) held a joint conference on “Current Issues in Family Law”. This event – attended by over 100 professionals – focused on three main areas: facts vs appearance, practice issues, and joint retainers. Nine professionals, including six business valuators, two family law lawyers, and a retired judge addressed these issues.
1) Independence of experts: Fact vs Appearance
Neil Maisel moderated a panel with Brahm Siegel and the Honourable Cliff Nelson who provided their thoughts on the recent changes to joint litigation experts and independent witnesses.
As Brahm noted, the recent changes that were brought into law in July 2019 outline the following:
- The Courts have the authority to appoint experts and mandate one or both spouses to pay for them.
- No other expert can be called to give testimony once a joint litigation expert has been retained except where appointed by the Courts. This does not prevent shadow experts from being used to prepare for court but it does prevent joint retainer assignments from devolving into a case with dueling experts critiquing each other’s work and testifying in court. As Bram said, you are not dating the expert, you are not engaged to the expert, you are married to them and in it for the long haul.
- Reports are now due 6 days before the settlement conference, not 90 days before court. This could mean that reports will now be prepared months if not years earlier than they have been in the past.
- There are some vague terms in the legislation that may ultimately have to be tried in court including when critiques are due and if new information can be added to an addendum report.
These changes are structured to compel the parties to disclose information and get reports prepared much earlier in hopes of making settlement conferences more effective. The goal appears to be that settlement conference will no longer be a checkmark in the process but rather an actual situation designed to help the parties settle.
2) Practice Issues
Lorne Wolfson moderated a panel with Lorne Siebert and Stacie Glazman. Stacie provided valuable tips for testifying at trial and there was a fulsome discussion about what type of reports should be used and when:
- i) Preparation
- ii) Demeanor
- iii) Examination in Chief
- iv) Cross Examination
b) Report Types
- i) Draft reports are no longer available to be used
- ii) Oral reports are acceptable but no written information is to be provided
- iii) Calculation reports should be used only in specific circumstances, where:
- Limited information is provided to the valuator; and
- Limited reliance is placed on the report (i.e., not generally for court purposes)
While providing expert testimony one should stick to their area of specialty and avoid opining on issues they are not trained for. When there are numerous options available the expert should provide alternative scenarios and avoid determining which alternative is the best as this is ultimately up to the trier of fact.
3) Joint Retainers
Matthew Krofchick moderated a panel with Paula White and Gary Mynett. We continue to see an ever-changing landscape in family law as more people are self-represented, looking for alternative options than going to court, and want more affordable options when it comes to their separation. The emergence of joint retainers, which have primarily been used in collaborative law and mediation, has started to gain more traction outside of these areas.
We are now seeing high-conflict cases using joint retainers, where peace bonds (the ex-spouses are legally not allowed to directly communicate with each other) are in place, as well as court-appointed joint experts (see Bartley v. Danso).
In 2010, British Columbia implemented a one-expert system for some of the financial issues surrounding separation whereas no such system exists in Ontario. While we have very recently seen changes to allow court-appointed joint retainers and litigation joint retainers, this is by no means a mandatory offering like it is in British Columbia.
We were fortunate to have Gary, a CBV from British Columbia, as a panelist to share his experience on how the use of joint retainers have worked over the last decade and provide us with some thoughts on the issue. Gary felt that as a result of the approach adopted in B.C. there were fewer occasion in which he was called to testify at trial.Overall, we can reduce conflict throughout the joint retainer assignment through a carefully scripted retainer letter, making sure there are open lines of communication, and having buy-in from both parties.