Law Times

Page 12 June 22, 2015 • Law Times www.lawtimesnews.com Family lawyers divided on jointly retained experts By yaMri Taddese Law Times s concerns about ris- ing costs in family liti- gation continue, some parties are trying to spend less by retaining experts jointly. Such experts assist in areas such as figuring out income sce- narios. It's a practice some judges and lawyers encourage as an ac- cess to justice and cost-reduc- tion tool. But in hard-fought family law disputes, how well does that practice actually work? And what happens when one party doesn't like the expert's findings? "It's terrible," says Toronto family lawyer Jodi Feldman. "I'm so against joint experts except for very limited circum- stances." Recently, a family law litigant brought a motion for an or- der requiring a jointly retained expert to expand his role. e issue was whether the court could make such orders without the consent of the other party. In the end, the court found it couldn't do so for fear it would discourage parties from jointly retaining experts. "Although Ontario does not yet have a rule specifically di- rected to the retainer of joint experts, there are strong policy reasons to encourage their use. ese include saving time and expense, narrowing conflict, and promoting early resolution of disputes," wrote Superior Court Justice Jennifer Mackinnon in Mowers v. Acland. "Enabling a court to expand the terms of a joint retainer without the consent of both par- ties would deter litigants from agreeing to retain a joint expert," she added. "I expect it would also deter experts from accepting joint retainers so as to avoid the pos- sibility of being unwillingly placed in a position of conflict of interest with one or other client at some future point in time." In Mowers, the court said various provisions of the Fam- ily Law Rules that came into ef- fect in 2011 didn't "confer on the court a broad discretion to ex- pand the agreed upon retainer of a jointly retained expert." e court also said that given the existing joint retainer the expert has with each of the par- ties, he doesn't count as being independent for the purpose of Rule 20.01(3). at rule says: "e 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 rel- evant to an issue in a case." Feldman is acting in a case where she says the issue is simi- lar to the one in Mowers. e parties in her case retained an expert jointly before she became counsel of record, she says. Now, although she believes there's a flaw in the expert's findings, she says she's unable to question them or withdraw from the joint agreement. "e judge said you can't cross-examine your own ex- pert. You can't make the expert expand their role as in that deci- sion [in Mowers]," she says. Feldman says in her mat- ter, she wanted to expand the expert's role in order to explain how the person arrived at the findings but she couldn't do so because the other party didn't consent. "It's terrible. I'm stuck with a report that's . . . based on propo- sitions and scenarios that are not in my favour but I can't change them," she adds. Although a retainer agree- ment would outline at the be- ginning the scope of the expert's role, "the problem with the scope of what should be covered is that not everybody knows at the be- ginning," says Feldman. "It's too early to instruct and be stuck," she adds. And if a party disputes the ex- pert's findings, it may incur more costs to have another evaluator look at the report instead of sav- ing money as originally intend- ed, says Feldman. In Feldman's view, jointly retained experts are only a good idea when counsel on both sides are collaborative and the expert is taking instruc- tion from both parties on the scope of the work. Family lawyer omas Ma- cLennan says jointly retaining experts is becoming more and more common. "It's so outrageously expen- sive that retaining somebody together, I think, is a reasonable course of action," he says. "Personally, I think the huge benefit is the reduction of the fees by half," he adds, suggesting it's also a creative way of coming to a resolution that minimizes the cost consequences. e primary challenge, says MacLennan, "is letting go . . . and letting the accountant do his work." MacLennan also has a dif- ferent view on the notion of independence. "In reality, these professionals are independent under the rules of their profes- sional organization. ey're re- quired to be," he says. "And when they're retained either solely or jointly, they're going to be independent. From my perspective, if they're re- tained jointly, they're going to be even more so independent." MacLennan does agree, how- ever, that jointly retained experts may work better in a more col- laborative atmosphere. He also says where parties don't agree with the results, they may end up incurring more costs. "Frankly, in family law in a lot of these cases, we oen take routes we think are worthwhile in terms of resolving cases and sometimes they don't work," says MacLennan. "at doesn't mean that we don't make the effort." It's a question of assessing the benefits and risks, he adds. "I guess there's risk every- where, but . . . you have to do a cost-benefit analysis and de- termine whether the circum- stances facing a particular party favour one course of action over another." 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