Need to hire an expert on your family matter? You may need to agree with your ex on who that expert will be

When couples break up, family assets and property are divided up between the spouses based on factors such as the current value of the assets, and the value of the assets when the couple got together. Those calculations often require the assistance of experts. When couples end up in court and want to rely on that expert evidence, British Columbia Supreme Court Family Rule 13-3(2) requires the ex-spouses to agree on the expert both of them will use. In other words, the court will only hear from one expert, and that expert must be jointly appointed. This is a unique feature of British Columbia law: in other jurisdictions, the right of litigants to appoint their own expert is largely untrammelled.

The joint expert Rule has a sound basis in public policy. In matrimonial cases, expert evidence of valuation of assets is common and generally essential, but it can also be very expensive. In many cases, only one of the separating spouses has the resources needed to obtain an opinion. In that case, the only expert evidence tendered at trial may be biased towards the party tendering (and paying for) the evidence. And if each party calls their own expert, there can be “dueling” expert reports which can  lead to a large duplication of costs, as often the experts agree on most portions of their opinions.

But not all experts must be jointly appointed: only where the subject of the opinion is a “financial issue.” “Financial issue” is defined broadly as meaning “an issue  arising out of a claim under Part 5 [Property Division] or Part 6 [Pension Division]”, or issues arising from unjust enrichment or other trust claims.

Accordingly, the ambit of the Rule is potentially extremely broad. While most opinions respecting support (i.e., Guideline income reports) do not appear to be covered (as these issues are dealt with in Part 7 of the Family Law Act), essentially all other issues in a family law case can plausibly be characterized as “arising out of a claim” for property division and hence fall within Part 5, Part 6 or unjust enrichment or other trust claims. In some cases, even support issues could be characterized as arising out of a claim under Part 5, as section 95(3) permits the court to take into account the parties’ financial means and earning capacities in deciding how to divide (i.e., reapportion) family property and debt.

While broad on its face, in Kasapoglu v. Kasapoglu a BC Supreme Court decision from November 2020, MacNaughton J. restricted the application of the joint expert rule to matters that are, at their core, financial. In order to engage the joint expert rule, the nature of the opinion must be more than just tangentially connected to a claim for property division, MacNaughton J. said: it must be about valuation, accounting issues, or actuarial opinion.

In Kasapoglu, both parties were Turkish citizens who had entered into a form of pre-nuptial agreement governed by Turkish law. The wife wanted to set the agreement aside, while the husband wanted to enforce it. One of the issues at an upcoming trial was the enforceability of the agreement as a matter of Turkish law.

The husband applied for the joint appointment of an expert in Turkish family law. From the husband’s point of view, expert evidence on Turkish law was required and the enforceability of the agreement would have a major impact on property and debt division. The husband thus took the position that it was a “financial issue” requiring joint expert evidence.

The wife took the position that the enforceability of the agreement under Turkish law was a “purely legal opinion” that was only tangentially connected to her claims for property division.

Thus the question before the Court was whether an opinion respecting foreign law was a “financial issue” such that a joint expert was required.

Justice MacNaughton found that opinion evidence from an expert of foreign law was not a “financial issue” as contemplated by the Rules, and that as a result each party was at liberty to tender his or her own expert evidence on that issue. Drawing a distinction between “legal, medical or other experts” on one hand and “financial exerts” on the other, MacNaughton J. limited the application of the Rule to issues that are, at their heart, financial: valuations, appraisals, accounting assessments, and actuarial issues. While MacNaughton J. agreed with the parties that expert evidence on foreign law was likely required, she declined to order that the expert be jointly retained: instead, each party could retain a separate expert.

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About Alex Boland

Partner – Kelowna

Every life contains great transitions. I hope to help my clients through their separation with compassion, integrity, intelligence and dignity. I try and see each file on its own merits, and this means that I want to work with my clients to develop an approach that moves them forward towards their particular goals. Practically speaking, I prefer to take a collaborative approach to files where possible; I like to apply the specialized knowledge and competencies I've developed over my practice to challenging problems; and I like to exercise compassion in all that I do.