Is Expert Evidence Admissible on Interim Family Applications?

While expert evidence is typically presented at the trial of a family law matter, there are occasions when an expert report is necessary to support an argument on an interlocutory matter. Applications for parenting time, child and spousal support and advances on family property come to mind as instances when an expert report may be called for.

In Ellis v. Alvarez [2023] B.C.J. No. 608 the court heard an appeal from a master’s order where a s. 211 custody report was admitted on an interim application where the issue of parenting time and related issues were considered. The report was admitted and, as a result, the appellant’s parenting time was drastically reduced.

On appeal the appellant argued that the report was not delivered to her in a timely fashion, and that the court should have allowed cross-examination of the expert. The appellant relied on Rule 13-1 of the Supreme Court Family Rules which provides that a report must be delivered to the opposing party “42 days before the scheduled trial date.” It also provides that a party wishing to cross-examine an expert must advise the expert of their wish to conduct a cross-examination at least 28 days prior to the trial.

The court rejected this submission, noting that Rule 13-1 does not govern expert reports on interlocutory applications. Citing L.S. v. G.S. 2015 No. 455, the court held that:

… it is appropriate in certain circumstances to reply on expert evidence in interlocutory proceedings, particularly in family law … despite the absence of a specific rule governing the use of expert evidence in chambers matters, a court should still ensure that there is fair notice to the other side of the factual underpinnings of any expert opinion. What should be avoided is bogging down a hearing that is meant to be a more efficient and timely process than a trial in unhelpful procedural requirements.
L.S. v. G.S. was also referred to by the British Columbia Court of Appeal in Mostertman v. Abbotsford (City) [2022] B.C.J. No. 2548, where the court acknowledged that the common law applies to the use and disclosure of expert opinions on interlocutory applications and held:

I am satisfied that the essential issue in this application is whether the plaintiffs have disclosed sufficient information related to the expert file such that the defendant can properly evaluate the opinion. This includes whether there has been sufficient disclosure of the factual basis for the opinion, the research conducted, and the expert’s qualifications. However, I must also balance the competing principle of efficiency and consider how much disclosure is needed at this stage of the proceedings.
Another admissibility argument raised in cases like this one is that the expert report is hearsay and therefore not admissible. However, the answer to that submission is found in Rule 10-4(13) of the Supreme Court Family Rules, which provides that hearsay is admissible on an application for an interim order.

In Evans v. Mahtoy [2015] B.C.J. No. 2509 the respondent attempted to persuade the chambers judge to refer the application to the trial list because the affidavit evidence contained hearsay. The court noted that the “flaw” in the respondent’s position was that his assertion could be made against every contested application for an interim order, which necessarily proceeds on the basis of affidavit evidence. The court confirmed that the Rules permit evidence to be based on “information and belief,” so long as the source of the information is identified, and a final order is not being sought.  

Lawdiva aka Georgialee Lang

**This article was first published in Law360, a publication of LexisNexis Canada.

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