Battle of The Experts

Family law property and support cases ought to be easy to resolve in theory. There are set rules regarding property division and equalization schemes in each province. The use of Child Support Guidelines and Spousal Support Advisory Guidelines are designed to provide greater predictability of results, thus encouraging early settlement.

Theory and practice are not always the same. Litigants in family law disputes are often self-employed and may hold shares in private corporations. They may be paid through corporations in different ways, such as by dividends, salary, bonuses, consulting income, etc.

Others may have employment incentives such as options or deferred profit-sharing that must be taken into account for property division and income for support.

Courts in family law matters are increasingly reliant on expert opinions regarding the value of business interests and the calculation of income for support. Sometimes parties jointly retain a valuator to save on the substantial costs involved in hiring a professional and in order to encourage resolution out of court. However, the most disputed cases that make it to trial usually have two experts involved, each with different opinions as to values.

Experts in Ontario (and other provinces) are not supposed to be “hired guns” doing the litigation bidding of the party who hired them. They are required to sign an Acknowledgment of Expert’s Duty stating that they provide opinion evidence that is fair, objective and non-partisan and that their duty to the court overrides their duty to the individual party.

The recent Saskatchewan Court of Appeal case of Frondall v. Frondall 2020 SKCA 135 provides clarification on two points of interest regarding the use of expert opinions in family law matters:

  1. How does the court treat expert opinion that is not independent and is aligned with the position of the party who retained the expert?
  2. What is the standard of review for the Court of Appeal regarding expert opinion, and what amount of deference is given to the trial judge’s findings regarding the use and application of expert evidence?

A brief summary of the facts of this case are as follows. The parties were involved in a long-term marriage. On separation, it was necessary to value the husband’s shares in the family holding company, Doug Frondall Group of Companies (DFGC) and to determine income available for spousal support to the wife.

Both parties provided expert opinions to the court. The wife hired “T” who certified as per the court rules that his evidence was “objective, non-partisan, and that he was aware that his duty was to the Court.”

The husband’s expert was “W.” W did not certify that his report was independent. He was upfront that his testimony and report were advisory in nature, and that the methodology used in the reports primarily related to mathematical calculations provided by the husband.

W stated that “the calculation of the value and comments in the following advisory report do not constitute our independent calculation with respect to the Fair Market Value of the shares in the Company” (emphasis added). W and the husband were friends, former business partners and at the time of trial enjoyed a work relationship. The trial judge observed that a reasonable person may detect a “whiff of potential bias” regarding W’s expert opinion.

W’s opinion should not have been admitted at trial. There are four requirements for the admission of expert evidence, according to R. v. Monahan [1994] 2 S.C.R. 9. These are: a properly qualified expert (which includes the expert being independent), relevance, necessity and the absence of an exclusionary rule. Once the four requirements are established, the trier of fact must go to on to the second gate-keeping step and balance the “potential risks and benefits of admitting the evidence.”

Counsel for the wife did not object to the opinion evidence of W being admitted at trial despite its lack of independence. Neither counsel advised the trial judge of W’s failure to sign the Acknowledgment of Expert’s Duty. Instead, counsel for the wife challenged the independence of W’s opinion evidence during cross-examination, after his expert opinion was already admitted as evidence at trial.

The trial judge was left to wonder what use he could make of W’s opinion. The evidence was already admitted into the court record on consent, closing arguments were made based on the expert opinions, but the opinion was clearly flawed as lacking independence.

The trial judge opted for a balanced approach when considering the utility of W’s opinion. The trial judge opted to disregard W’s opinions if based solely or primarily on assumptions or opinions that the husband provided to him. The trial judge considered parts of W’s opinion when the valuation methodologies relied upon by W were sanctioned by T, the wife’s expert. In the grey areas in between, where there was some but not complete agreement on the valuation method relied on by the two experts, the trial judge gave lesser weight to W’s opinion than to T’s.

The husband appealed the trial judge’s decision regarding the reliance to be placed on W’s opinion. He argued that as the wife did not object to the opinion evidence at the admissibility stage, she had no right to challenge or contest the evidence or its weight during the trial. The husband further argued that the trial judge should not have provided greater weight to T’s opinion to that of W’s, as both T and W were qualified experts and had access to the same documents and information.

The Saskatchewan Court of Appeal rejected the husband’s arguments. According to the court, the admissibility of an expert’s opinion is a question of law, and absent an error in principle, deference is owed to the trial judge in relation to their decision to admit or reject expert evidence, or in this case, to admit or reject certain parts of the opinion evidence.

Further, the result of the valuation exercise is a question of fact. Where a decision on value is premised on expert evidence of one qualified expert over another, the related findings of fact are accorded deference on appeal.

In short, once the trial judge determines that some or all of an expert opinion is admissible, it is open for the trial judge to prefer the evidence of certain experts over others and place more weight on some parts of the opinion evidence than others.

The court in Frondall relied on both expert opinions to a certain degree in reaching its decision, and in some instances actually preferred the valuation results provided by W over those provided by T. Notwithstanding, the lack of an independent valuation and limited use made of W’s expert opinion at trial clearly prejudiced the husband’s position regarding the valuations of his shares and income.

The lesson learned from Frondall is that in high stakes family law litigation, one should never prejudice themselves by compromising on the independence of their expert. It is best to retain a qualified, arm’s length expert than to rely on the assistance of one’s own accountant and business associates in the determination of values.

Divorce, Your Best Revenge

a couple speaking with a divorce lawyer

It’s all about the money!

I know this is a controversial statement. For every couple, divorce is emotionally wrenching as one or both partners crave revenge. Too many divorces are about revenge and are fueled by emotion. For me, this is wrong, wrong, wrong! It’s actually all about money. And this money is the most important money in the world for it is yours!

So who am I to make this bold statement? I am a real estate appraiser and arbitrator/mediator and I bear scars from my own divorce. Over 40 years I have probably seen and heard it all. I’ve been involved in thousands of divorces, and, althrough I personally no longer appraise the residential part of divorce actions, I still supervise senior staff who do. I have watched as reasonably intelligent people fight obsessively to the end to get back at their spouse. In the end – it was not worth it.

Look again at what I just said: it was not worth it!

Let’s face it, divorce can be a nasty part of one’s road through life. You probably feel hurt, cheated, angry and want to get back at your spouse. Your reasons may be very valid, but keep one thing in mind – it should not be about emotion, it should be about money!

in a messy divorce, only the professionals make money. Lawyers, Realtors and appraisers all benefit from your emotion. But get this into your head; right now it is your money. If you go for revenge, it will be theirs. You have a choice, you can fight on obsessively, making the professionals rich and yourself poor or you can cut it out now and put your money where it belongs – in your pocket.

I’m sure you’ve heard a lot of lawyer jokes, but having serviced the legal profession since 1968, I have a great deal of respect for lawyers who are tops in their field. The real legal professionals get frustrated with clients who want their day in court, because these clients will never be happy with the result and never get everything they want. For them, the divorce case drives their lives, and this drives the lawyers crazy putting up with constant phone calls on minor issues. All to get revenge.

I say the best revenge in the world is to live well – financially, emotionally, physically, and spiritually. If you use the system to get your revenge, you will suffer in all fronts. Unless you are one of the privileged, you will have to downgrade your way of life and living conditions. If you have kids, they will have to deal with months and maybe years of bitterness. When it is all over both of you will have lost. The professionals will have won.

There must be a better way.

I say the best way is to take a deep breath, think it out in terms of money and leave the emotions out of the process. The end will come whether you fight it or ease the process along, but the end will come. You will get your divorce or separation agreement. If you work through your divorce lawyer to set out a settlement and your spouse does the same, you can mediate or arbitrate from there. You save time, and time in a legal process equates to a lot of dollars in your pocket.

An example: Want to hang on the house? Step away from the emotion and look at it this way. Ultimately the house will be sold. In the meantime, costs will increase and prices may drop. Why not maximize your return, sell and sell quickly with minimal fuss. Don’t use your biggest investment to get even with each other. Treat the house for what is, your largest financial source. No equity? Then cut the loss as quickly as possible, don’t drag it out while interest and costs increase.

Am I advocating giving in? Absolutely not! What I am advocating is leaving the emotion behind. And if you’re ready to do this but your spouse is not, why not start the process by sending him or her this article?

I want you to do a smell test. Call a few friends or family members who have gone through a messy divorce. Ask them point blank: if they had the benefit of hindsight, would they have preferred to settle the whole thing quickly or were they satisfied with their process and the time it took? I’ll bet 90 percent will say they lost the long run because they couldn’t take the emotion out of the process.

In my own divorce, my wife and I focused on the love we had for our children. We acknowledged each other as loving and caring parents. We were very lucky: respect for each other on that level was never an issue although I know that is not always the case.

We both knew the ramifications of fighting and we both resolved to instruct our lawyers to work together on a mutually agreed upon settlement. We had some complex issues and had to retain a knowledgeable accountant, which was costly, but in the end we each saved a small fortune. Even more important, we are not better friends than we were when we were husband and wife. And best of all, the kids did not have to deal with the bitterness taht is common in divorce.

So what are the issues? Your spouse cheated on your, ruined you financially, found a younger partner, hit you, is a couch potato, has bad habits, is into drugs? Get your revenge the smart way: get beyond the issue and live well. Give yourself a reality check – you are better off without them. Now think of yourself. Think of the money.

One last thing – why did I write this? Because I am tired, absolutely tired, of the nightmare I, as a professional and a divorced person, have seen people go through. If I only help one person come out of this process further ahead, it was worth doing.

Money in your pocket or revenge? The choice is yours.

Grey Divorces: The Financial Impact Of Divorcing Later In Life

a couple sit facing opposite directions after divorce

Now that your children are grown and have moved out, you’re probably thinking about how you’re going to enjoy the next stage of your life. For some married couples, they may decide they want to enter their golden years without their current partners.

Also known as a “grey divorce”, ending a marriage after the age of 60 has become a noticeable trend amongst the boomer generation. As reported by Advisor.ca, the number of seniors filing for divorce has increased significantly over the last few years, although statistics for divorces overall appeared to be down.

How Do Retirement Funds Affect Spousal Support?

The challenge with divorcing later in life is that it poses significant risks to a person’s financial stability during retirement. In many cases, couples are no longer earning an income past age 65. This means that both parties in the relationship are on equal grounds when it comes to earning ability as they are relying on their retirement funds.

With no one being the “higher earner” in this situation, the shared wealth would essentially be divided equally between them, barring any excluded items, such as inheritances. Federal spousal support guidelines would only apply if one of the parties was still earning an income.

What If One Of Us Is Still Working?

Some people stop working at different ages in life, which means that one partner may still be earning an income while the other is not when they decide to divorce. In these scenarios, it is more complex to determine a fair and reasonable equalization payment.

  • Would a pension still be considered family property, or a source of income for the non-working spouse?
  • How would pensions and other retirement savings be valued and then equalized between spouses when one person is still employed?
  • Would the federal spousal support guidelines still apply?

For these situations, consultations with legal and financial professionals can shed more light on the value of your assets, how they should be divided, and determining your legal rights and obligations.

Duration Of Spousal Support Payments For Older Individuals

According to the federal spousal support advisory guidelines, there is no end date for spousal support for couples who have been married for longer than 20 years. If a payor wants to cease paying spousal support into retirement, then he or she would have to prove a significant change in circumstances to change the original spousal support order.

If you remarry, and then divorce again at an older age, the rules for the duration of spousal support payments are different than for couples who divorce earlier in life. The government realizes that, as couples get older, there’s not just the length of the marriage to consider when determining eligibility for spousal support. The age of the individuals, proximity to the age of retirement, and their financial stability post age 65 should also be considered.

Grey Divorces: The Bottom Line

Whether you are paying spousal support into retirement, or must divide your retirement funds in a divorce settlement, you may need to revaluate your retirement plans. Where you were going to live, places you were going to travel, or things you intended to purchase may change if your financial situation is impacted post-divorce.