• by David Tobin
Originally published in the OFLM 2023-7 edition
Rule 20.3 of the Family Law Rules provides the court with the authority to appoint an expert “to inquire into and report on any question of fact or opinion relevant to an issue in a case”. There is a surprisingly limited amount of case law dealing with this rule (which replaced the previous Rule 20.1(3) in September 2019). This is a useful rule to remember and utilize, and in the right context it can be a very effective tool to get necessary and expensive evidence before the court.
As Justice Jarvis pointed out in Bahous v. Bahous (2023 ONSC 1580), “…the time has come for the court to aggressively flex its power under Family Law Rule 20.3 to appoint an expert "on its own initiative" so as to implement the "culture shift" observed by Myers J. in Manchanda.” Justice Myers in Manchanda v. Thethi (2016 ONSC 3776) noted as follows:
Implementing a culture shift to enhance access to justice by promoting efficiency, affordability, and proportionality requires the court to re-draw the line between limiting drastic measures and applying the law robustly. In my respectful view, a little less judicial diffidence, a little less reluctance to hold accountable those who would deny justice to their former spouses, and a little more protection of abused parties from abusers, might be a better fulfillment of our critical responsibility…
The full text of Rule 20.3 is reproduced below:
Appointment of expert by court
20.3 (1) The court may, on motion or on its own initiative, appoint one or more independent experts to inquire into and report on any question of fact or opinion relevant to an issue in a case. O. Reg. 250/19, s. 8.
Requirements of order
(2) An order under subrule (1) shall,
(a) name the expert being appointed, who shall be a person agreed on by the parties if possible;
(b) specify the instructions to the expert; and
(c) require the parties to pay the expert’s fees and expenses and specify the proportions or amounts of the fees and expenses that each party is required to pay. O. Reg. 250/19, s. 8.
Serious financial hardship
(3) Despite clause (2) (c), the court may relieve a party from a requirement to pay any of the expert’s fees or expenses if the court is satisfied that requiring the payment would cause serious financial hardship to the party. O. Reg. 250/19, s. 8.
(4) If a motion is made under subrule (1) that is opposed, the court may, as a condition of the appointment, require the party making the motion to give such security for the expert’s fees and expenses as is just. O. Reg. 250/19, s. 8.
(5) In making an order under subrule (1), the court may make any further order it considers necessary to enable the expert to carry out the specified instructions, including,
(a) an order for the inspection of property; or
(b) an order under section 105 of the Courts of Justice Act (physical or mental examination of a person), if the requirements of that section are met. O. Reg. 250/19, s. 8.
The origin of this rule was added to the Family Law Rules in 2011 and was based on the Rules of Civil Procedure (rules 52.03). At the time of its addition to the Family Law Rules, it was established law that under the Rules of Civil Procedure and by extension the Family Law Rules, court appointed experts were “solely reserved to assist the court in understanding the evidence the parties will or have presented at trial” (Mowers v. Acland, 2015 ONSC 1313).
It appears that in its current form, courts have been willing to take the application of this rule a little further.
It is clear from the current text of the rule that:
- Even though most of the case law relates to requests for financial experts, this rule is not limited to financial experts. This rule can be used for any expert that is necessary or relevant to a live issue. Subrule 20.3(5) specifically references defense medical examinations under section 105 of the Court of Justice Act. Justice Kraft, in Mohajeri and Stroedel, (2020 ONSC 6554) confirmed that under Rule 20.3, she could order an assessment in the same terms as those found in section 30 of the Children’s Law Reform Act.
- Despite case law interpreting otherwise, both parties are to contribute some portion of the expert’s fees unless payment would cause “serious financial hardship” to a party. The case law interprets the proportioning provision of the rule as a mechanism to make a ‘bad actor’ pay all or almost all of the fees.
When will a court make an order under Rule 20.3 on a motion?
Rule 20.3 has been used to address the common injustice of a party refusing to fulfil their obligation to retain an expert. Where the other party does not have the resources or the inclination to obtain an expert in light of the other’s refusal, they can bring a motion pursuant to Rule 20.3.
If a non-obligated party is unable to or unwilling to (in certain circumstances) fund an expert’s involvement in the case and an expert is needed to report on a question of fact or an opinion, the non-obligated party can seek the appointment of a court appointed expert.
In asking for that expert, the party can also obtain an order apportioning the “lion’s share of the fees” to the other and presumably better funded party (Smith v Smith, 2021 ONSC 7167 at para 15).
Orders for experts can be brought when a party has an obligation to retain an expert to value their business interests or property, or determine their income for support purposes but refuses to furnish such evidence. In these circumstances a court may appoint an expert to produce a report and order the obstinate party to pay for the expert.
Di Sabatino v. Di Sabatino
In Di Sabatino v. Di Sabatino (2021 ONSC 4901), Justice Jarvis gave a party 30 days to retain an expert to value his business and determine his income failing which the “court would consider appointing wife's expert at his expense.”
What is interesting about Justice Jarvis’ statement is that it seems to side-step the requirement that the court appointed expert shall be ‘independent.’ An expert retained by a party prior to being converted to a court appointed expert does not appear independent.
At the motion, the wife sought disclosure from the husband related to his twenty-two companies worth roughly $20 million to $30 million. The wife retained an expert (Martin Pont) to determine the value of the husband’s business interests and to determine his income. The husband thought it necessary neither to retain his own expert for this purpose, nor to provide the wife’s expert with disclosure. The husband also sold a business notwithstanding a preservation order.
Unsurprisingly, Justice Jarvis was unimpressed with the husband’s behaviour and made a sweeping disclosure order requiring the husband to provide disclosure sufficient for the wife’s expert to complete his mandate. He also ordered that the funds from the sale of the husband’s business remain in his lawyer's trust account.
Justice Jarvis stated that:
…given the husband's abdication of his valuation/income analysis duty, [the wife’s expert’s] expert opinions may be the only expert evidence that this Court will permit be tendered in evidence. There is no indication that the husband is inclined to retain an expert. Wait and See is not a very smart strategy. (emphasis added)
Justice Jarvis then ordered that
- The husband would have until August 16, 2021 to retain an expert to undertake a valuation of his business interests and an analysis of his income.
- He shall provide to Court by that time an affidavit (separate from his disclosure affidavit) that meets the requirements of Rule 20.3 but with terms.
- The proposed expert must undertake to complete his engagement by October 31, 2021.
- The husband should be aware that before this matter can proceed to a settlement conference the experts will be required to comply with Rule 1(7.2)(k) which provides as follows:
For the purposes of promoting the primary objective of these rules as required under subrules 2(4) and, particularly, (5), the court may make orders giving such directions or imposing such conditions respecting procedural matters as are just, including an order, (k) that any expert witnesses for the parties meet to discuss the issues, and prepare a joint statement setting out the issues on which they agree and the issues that are in dispute.
Finally, Justice Jarvis ordered that if the husband did not retain an expert, the court would consider appointing the wife’s expert pursuant to Rule 20.3, the expense for which shall be paid by the husband from the funds held in his lawyer’s trust account.
It is unclear from the reasons whether the wife would experience serious financial hardship if she had to pay, but Justice Jarvis used the proportioning provision in the rule as a motivating tool to encourage the husband to fulfil his obligation.
So here we have the court considering using Rule 20.3 where a party is attempting to frustrate the litigation by making their financial circumstances opaque and abdicating their valuation/income analysis duty.
When will a court act on its own initiative?
As stated above, a court can act on its own initiative to appoint an expert. It need not wait for a party to bring a motion for such an order.
But when will the court do this?
Rule 20.3 should be read in the context of the primary objectives of the Rules as stated in Rule 2, which is to “enable the court to deal with cases justly” including “saving expense and time” and “dealing with the case in ways that are appropriate to its importance and complexity.”
In Van Delst v. Hronowsky (2021 ONSC 2353), Justice Engelking utilized Rule 20.3 on her own initiative at what she called a “tragically unnecessary hearing”.
This particular hearing was a three day event and was the result of the husband’s narrow appeal of a trial decision which resulted in difference of an equalization payment of roughly $1,000.00. At paragraph 7 of her reasons, Her Honour wrote:
Rather than minimize "further cost and delay", as suggested by the Court of Appeal, the parties ultimately conducted a three day hearing on the issue, where their respective experts each provided opinions on the FLV of Ms. Van Delst's pension at a normal retirement of age 60 which were less than one thousand pre-tax dollars apart.
It is in this context that, on the issue of a pension rollover and the required tax gross up, she appointed an expert to opine. At paragraph 50, Justice Engelking wrote:
Based primarily on Rule 2(3), in particular "(b) saving time and expense" and "(c) dealing with the case in ways that are appropriate to its importance and complexity", I agreed to hear from Mr. Martel on this issue. The last thing that is required in this case is a further hearing on the even narrower question of Ms. Van Delst's potential tax rate on the amount owing.
The Court appointed an expert who had already been retained by one of the parties on another (albeit related) issue (again independence is questionable). It did so on its own initiative to save time and expense and deal with the case justly.
It seems that it will be a rare case that two funded parties with access to their own expert will benefit from Rule 20.3 as one would think it would be the parties’ responsibility to marshal the expert evidence. However, Justice Engelking appreciated that the husband would continue to litigate this matter if she did not immediately address the issue. We can take from this that in the context of a serial litigator, a court may be more inclined to make such an order on its own initiative.
In Grande v. Sciacca (2021 ONSC 1625), Justice Jarvis used the spectre of the court’s power to appoint its own expert under section 20.3 to cajole the parties agreement to a joint expert when he endorsed “If the parties are unable to agree on the choice of valuator and the scope and nature of the valuator's engagement in the near future, consideration may need to be given to Family Law Rule 20.3 dealing with the court's ability, on its own initiative, to appoint expert.”
In the previous iteration of the rule, Justice O’Connell in W.D.N. v. O.A. (2019 ONCJ 926) appointed an expert on US immigration law four days into a trial where the court was told conflicting information on a party’s immigration status in the United States, and she felt that:
Expert evidence on the issue of the mother's immigration status in the United States was needed in order to properly adjudicate the issues in this hearing. No expert evidence had been provided by the parties. Neither of the parent's counsel have expertise in U.S. immigration law, nor does the mother's immigration lawyer in Canada.
Without the information from an expert on the issue of the mother’s immigration status the court could not discharge its duty to fairly adjudicate the matter.
As stated at the outset, Rule 20.3 is an overlooked rule that since 2019 has, at least notionally, has been expanded in application.
The Rule is a powerful and compelling tool for a less resourced party to use when the other party is not fulfilling their obligation to retain their own expert.
This may also be a more effective tool than an order for interim fees to retain an expert because not only does Rule 20.3 leave it open of the non-complying party to pay for the expert, but also the expert will be ‘court’ appointed and thus maybe looked upon more favourably than an expert retained by one of the parties.