Master Baker confirms that lawyers should agree on both “any facts or assumptions of fact agreed to by the parties” and “any assumptions of facts” that the party wishes the expert to consider” before the expert is appointed. In Parton v. Parton, the parties had entered a consent order appointing a joint expert in business valuation without having agreed on the factual assumptions to be put to him.
By way of background, the old Supreme Court Rules in effect until June 30, 2010 did not require a joint expert for family law cases, but did require a a supplementary statement setting out the “facts and assumptions” on which the opinion was based. The new Supreme Court Family Rules require expert opinion evidence on a financial issue in a family law case to be presented by way of a jointly appointed expert, unless the parties otherwise agree or the court orders. They also require the expert to set out a description of the “factual assumptions” on which the opinion is based.
The new Supreme Court Family Rules provide that in those cases where the parties are jointly appointing an expert, the parties must resolve not only “any facts or assumptions of fact agreed to by the parties” before the appointment, but somewhat unusually, assumptions of fact that only one party wishes the expert to consider. There are therefore 2 distinct categories, those agreed by both parties and those that only one party wishes to be considered. In most cases, this second category may be little more than a springboard to an SCFR 13 – 4 (3) application to court where the parties cannot agree about a matter relating to the appointment of a joint expert.
What is interesting in Parton is that Master Baker used SCFR 13 – 4 (3) as a rule of general application to override a technical breach of the mandatory SCFR 13 – 4 (1) provision that the “facts or assumptions of fact agreed to by the parties” and “assumptions of factâ€¦that the party wishes the expert to consider” must be settled before the expert is appointed. In Parton, they were not.
As the court has long said, the role of an expert is to assist the court. The certification has raised this role to a duty. Further, usually counsel will provide the factual assumptions to the expert that counsel will then proceed to prove in evidence. What is given to an expert as factual assumptions will later be evidence at trial from which the trier of fact will make findings of fact. It only makes sense for the court to have flexibility to ensure the best evidence is before the court.
In Parton, the factual assumptions related to the intention of the other shareholders in the companies in valuing the interest of the family law party. These factual assumptions may be relevant to what the business valuator uses for a minority and loss of marketability discount in valuing the shares.
The most important lessons are:
- Family law lawyers should consider whether to seek agreement of the other lawyer to each have independent experts even on financial matters;
- Family lawyers should consider what factual assumptions should be given to the expert, including both those that can be agreed and those that are not agreed; and
- Always remember that the fundamental role and duty of an expert is to assist the court based on the expected evidence.