JWS v CJS (AKA CJH), 2019 ABCA 153


6.40: Appointment of court expert
6.41: Instructions or questions to court expert
6.42: Application to question court expert
6.43: Costs of court expert

Case Summary

The Appellant father (the “Father”), appealed a Trial Decision awarding primary care of three of his children to the Respondent, their mother (the “Mother”). The issues on Appeal included the Trial Judge’s reliance on an expert report that had not been tested under cross-examination.

During the Trial proceedings, the Trial Judge determined that the only expert evidence at His Lordship’s disposal was a report drafted by an expert who had not interviewed the parties’ children since 2013. Therefore, the Trial Judge exercised the Court’s powers under Part 6 of the Rules to obtain resources to assist the Court. Another expert would be appointed pursuant to Rule 6.40 which allows the Court to appoint an independent expert, and pursuant to Rule 6.41 which allows the Court to give the expert instructions.

The Panel also noted Rule 6.42, which gives the Court discretion to allow a Court-appointed expert to be cross-examined if an Application is made within twenty days of a party receiving the expert’s report, and also Rule 6.43 which states that the parties shall share the costs of the expert unless the Court orders otherwise.

A Consent Order was signed by the parties appointing an expert (the “Expert”) to assist the Court, and the Court ordered that the costs of the Expert would be paid 80% by the Father and 20% by the Mother. The Expert then provided a report, albeit without an accompanying Affidavit as required under Rule 6.41(3)(a).

Months later, as the Trial Judge was considering a Judgment in the matter, the Father’s counsel wrote to the Trial Judge inquiring whether His Lordship would consider hearing additional evidence including with respect to the Expert’s report. After the Court asked for clarification on what issues would be raised, the Father’s counsel confirmed the Father had no issue with the Expert’s report going into evidence but was concerned that it hadn’t been tested. The Trial Judge proceeded to render a Judgment awarding primary care of the children to the Mother without allowing cross-examination of the Expert, which resulted in this Appeal.

The Panel found no issue with the Trial Judge’s handling of the case. There is no right of cross-examination of a Court-appointed expert; it is within the discretion of the Court following an Application. No Application had been brought by the Father. Moreover, Rule 6.41(3) provides that a Rule 6.40 report is admissible in evidence. Finally, the Expert’s failure to submit her report under Affidavit as required by the Rules was immaterial. Neither party challenged the report’s authenticity or admissibility, nor was there any evidence that the lack of an Affidavit prejudiced either party.

The Appeal was dismissed with Costs awarded to the Mother.

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