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Difference between revisions of "Family Law Trials in Supreme Court"
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Family Law Trials in Supreme Court (view source)
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If either party wants to present expert evidence about a ''financial issue'', that evidence must be presented to the court by means of an expert that you and the other party hire together (often referred to as a ''jointly appointed expert''), unless the court orders or the parties agree otherwise (Rule 13-3(1) & (2) of the Supreme Court Family Rules). Once appointed, the jointly appointed expert is the only expert who is allowed to give expert evidence on the issue, unless the court orders otherwise (see Rule 13-4(5) of the Supreme Court Family Rules). | If either party wants to present expert evidence about a ''financial issue'', that evidence must be presented to the court by means of an expert that you and the other party hire together (often referred to as a ''jointly appointed expert''), unless the court orders or the parties agree otherwise (Rule 13-3(1) & (2) of the Supreme Court Family Rules). Once appointed, the jointly appointed expert is the only expert who is allowed to give expert evidence on the issue, unless the court orders otherwise (see Rule 13-4(5) of the Supreme Court Family Rules). | ||
A financial issue is defined as an issue arising out of: | A financial issue is defined in Rule 13-3(1) as an issue arising out of: | ||
* a claim to divide property, debt, or a pension (based either on the ''[[Family Law Act]]'' or what's called a ''FHRMIRA order'' (an order under the ''[http://canlii.ca/t/8rzj Family Homes on Reserves and Matrimonial Interests or Rights Act]'', or | |||
* an ''unjust enrichment'' claim, or some other type of trust claim, for compensation or an interest in property. | |||
If you want an expert opinion about a financial issue, but the other party doesn’t, you may have to make an interim court application to get the expert evidence you need to go to trial. One option is simply to offer to pay the full cost of the report up front, but on a ''without prejudice'' basis. This keeps the option open for a judge, later on, to consider if the other party should contribute to the cost of the report as well (usually after the judge has made their decision). | |||
Each party has the right to cross-examine a joint expert at trial, according to Rule 13-4(10). Also, each party is required to cooperate with the jointly appointed expert and produce to them all relevant documents and information (Rule 13-4(9)). | |||
Each party has the right to cross-examine a joint expert at trial | |||
=== Expert evidence about other issues === | === Expert evidence about other issues === | ||
If either party wants to present expert evidence on any other issues ( | If either party wants to present expert evidence on any other issues (i.e. medical issues, psychological issues, the earning capacity of a party or particular occupation), the parties can either present the evidence through an expert that the parties together retain or any party may retain their own expert (see Rule 13-3(3) of the Supreme Court Family Rules). | ||
=== Retaining the expert === | === Retaining the expert === | ||
An expert is retained by way of a ''letter of instruction'' or ''retainer letter''. If the expert accepts the job, the parties will probably be required to pay them a retainer right away, before the expert gets started on the report. | |||
Before an expert is appointed, the parties must agree on the following: | |||
# the identity of the expert, | |||
# the issue in the family law case the expert opinion may help to resolve, | |||
# any facts or assumptions of fact agreed to by the parties, | |||
# any assumptions of fact one party wants the expert to consider, but which the other party disagrees with, | |||
# the questions to be considered by the expert, | |||
# when the expert's report must be prepared and given to the parties, and | |||
# who is responsible for paying the expert. | |||
( | See Rule 13-4(1). | ||
That agreement must then be put in writing and signed by the parties (or their lawyers) and the expert. | |||
=== Court application if parties can’t agree or additional experts necessary === | === Court application if parties can’t agree or additional experts necessary === | ||
If one party seeks an expert opinion about a financial matter but the other party will not agree or the parties cannot reach agreement about the terms of appointment (as required by Rule 13-4(1)), that party will need to make an application to the court to order a joint retainer (see Rule 13-4(3) | If one party seeks an expert opinion about a financial matter but the other party will not agree or the parties cannot reach agreement about the terms of appointment (as required by Rule 13-4(1)), that party will need to make an application to the court to order a joint retainer (see Rule 13-4(3)). Any order appointing an expert or setting out the terms of the expert’s appointment must be promptly served on the expert. | ||
As stated before, the jointly appointed expert is the only expert who is allowed to give expert evidence on the issue, unless the court orders otherwise (see Rule 13-4(5)). A party can apply to the court for permission to introduce the evidence of an additional expert at trial, but must do so within 21 days after receipt of the joint expert’s report by serving the application materials on all parties. | |||
( | |||
( | Parties also have the opportunity to apply to the court for an order allowing them to introduce the evidence of a further additional expert. The judge hearing the application will consider whether the evidence of a further additional expert is “necessary to ensure a fair trial” (see Rule 13-4(7)). Other factors that the court may consider are listed in Rule 13-4(8): | ||
<blockquote><tt> | |||
(a) whether the parties have fully cooperated with the joint expert and have made full and timely disclosure of all relevant information and documents to the joint expert,</tt></blockquote> | |||
( | <blockquote><tt>(b) whether the dispute about the opinions of the joint expert may be resolved by requesting clarification or further opinions from that expert, and</tt></blockquote> | ||
</blockquote> | |||
( | <blockquote><tt>(c) any other factor the court considers relevant.</tt></blockquote> | ||
The process for bringing interim applications is covered in this chapter, under the section [[Interim Applications in Family Matters]]. | |||
=== Court-appointed experts === | === Court-appointed experts === | ||
The court can also appoint an expert on its own initiative (see Rule 13-5(1) of the Supreme Court Family Rules). The circumstances and process for the court to do make this type of order are set out in Rule 13-5 | The court can also appoint an expert on its own initiative (see Rule 13-5(1) of the Supreme Court Family Rules). The circumstances and process for the court to do make this type of order are set out in Rule 13-5. | ||
=== The expert’s report === | === The expert’s report === | ||
Rule 13-6 (1) | Rule 13-6(1) of the Supreme Court Family Rules states the specific requirements for an expert report if it's to be introduced as evidence at trial. An expert report must: | ||
*be signed by the expert, | *be signed by the expert, | ||
*include the certification required under Rule 13-2(2), and | *include the certification required under Rule 13-2(2), and | ||
*set out the following: | *set out the following: | ||
<blockquote><tt>(a) the expert's name, address and area of expertise;</tt></blockquote> | |||
<blockquote><tt>(b) the expert's qualifications and employment and educational experience in their area of expertise;</tt></blockquote> | |||
<blockquote><tt>(c) the instructions provided to the expert in relation to the family law case;</tt></blockquote> | |||
<blockquote><tt>(d) the nature of the opinion being sought and the issues in the family law case to which the opinion relates;</tt></blockquote> | |||
<blockquote><tt>(e) the expert's opinion respecting those issues;</tt></blockquote> | |||
<blockquote><tt>(f) the expert's reasons for their opinion, including</tt></blockquote> | |||
: | :<blockquote><tt>(i) a description of the factual assumptions on which the opinion is based,</tt></blockquote> | ||
: | :<blockquote><tt>(ii) a description of any research conducted by the expert that led them to form the opinion, and</tt></blockquote> | ||
: | :<blockquote><tt>(iii) a list of every document, if any, relied on by the expert in forming the opinion.</tt></blockquote> | ||
The expert report must be served on the other party at least 84 days before the scheduled trial date along with written notice that the report is being served under Rule 13 of the Supreme Court Family Rules (see Rule 13-6(3) of the Supreme Court Family Rules), except reports of court appointed experts. This is the case even where there is a jointly retained expert; each party is still entitled to notice of the other party’s intention to rely on the report at trial. | The expert report must be served on the other party at least 84 days before the scheduled trial date along with written notice that the report is being served under Rule 13 of the Supreme Court Family Rules (see Rule 13-6(3) of the Supreme Court Family Rules), except reports of court appointed experts. This is the case even where there is a jointly retained expert; each party is still entitled to notice of the other party’s intention to rely on the report at trial. | ||
